ARGUMENTS  AND  SPEECHES 

OF 
WILLIAM  MAXWELL  EVARTS 


THE  MACMILLAN  COMPANY 

NEW  YORK   •    BOSTON   •   CHICAGO  •    DALLAS 
ATLANTA  •   SAN  FRANCISCO 

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THE  MACMILLAN  CO.  OF  CANADA,  LTD. 

TORONTO 


ARGUMENTS  AND  SPEECHES 

OF 

WILLIAM  MAXWELL  EVARTS 

EDITED,  WITH  AN  INTRODUCTION,  BY  HIS  SON 

SHERMAN  EVARTS 


In  Three  Volumes 
VOL.  I 


JJeto  gorfe 

THE  MACMILLAN  COMPANY 
1919 

All  rights  reserved 


OBRARTfl 

DSIVERSITY  OF  CALIFOKHIA 
DAVIS 


Copyright,  1919,  by 

THE  MACMILLAN  COMPANY 

Set  up  and  printed.    Published  September,  1919. 


TO 

THE   MEMORY   OF   MY   MOTHER 

HELEN   MINERVA   WARDNER   EVARTS 

THESE   VOLUMES  ARE   AFFECTIONATELY  DEDICATED 


CONTENTS  OF  VOLUME  I 

PAGE 

Introduction ix 


PROFESSIONAL  ARGUMENTS 

I.  Brief  and  Argument  in  the  New  York  Court  of  Appeals, 
January  24,  1860,  in  the  case  of  The  People  of  the 
State  of  New  York  against  Jonathan  Lemmon. 
(The  Lemmon  Slave  Case) 3 

II.  Address  to  the  jury  in  summing  up  for  the  Govern 
ment,  in  the  United  States  District  Court,  Southern 
District  of  New  York,  October  29,  30,  1861,  in  the 
case  of  The  United  States  against  Thomas  Harrison 
Baker  and  Others,  the  Officers  and  Crew  of  the 
schooner  "Savannah,"  on  the  charge  of  Piracy. 
(The  Savannah  Privateers) 91 

III.  Argument  in  the  Supreme  Court  of  the  United  States 

on  behalf  of  the  Government,  February,  1863,  in  the 
case  of  Peter  Miller  et  al.,  Claimants  of  the  barque 
"Hiawatha"  against  The  United  States,  and  other 
cases.  (The  Prize  Cases) 214 

IV.  Argument  in  the  Supreme  Court  of  the  United  States, 

February,  1866,  in  the  case  of  Churchill  against  the 
City  of  Utica.  (Bank  Tax  Case) 295 

V.  Argument  in  defence  of  President  Andrew  Johnson, 
April-May,  1868,  before  the  Senate  of  the  United 
States,  sitting  as  a  Court,  in  the  Impeachment  Trial 
of  the  President 340 

VI.  Argument  in  the  Supreme  Court  of  the  United  States, 
for  the  Government,  December,  1868,  in  the  case  of 
Hepburn  against  Griswold.     (Legal  Tender  Case)  .     526 
vii 


viii  CONTENTS 

VII.  Argument  before  the  International  Tribunal  at 
Geneva,  Switzerland,  on  behalf  of  The  United 
States,  under  the  Treaty  of  Washington,  August, 
1872.  (The  Alabama  Claims) 582 

VIII.  Argument  before  the  Mixed  Commission  on  British 
and  American  claims  under  the  Treaty  of  Washing 
ton,  August,  1873,  for  the  claimants  in  the  case  of 
S.  Isaac  Campbell  &  Co.,  owners  of  the  cargo  of  the 
Barque  "Springbok,"  against  The  United  States. 
(The  Springbok  Case) 665 


INTRODUCTION 

It  is  related  of  John  Bright  that  when  consulted  about  his 
biography  he  would  turn  the  subject  aside  by  saying,  "My 
life  is  in  my  speeches."  That  his  life  was  in  his  speeches 
may  be  said  with  much  truth  of  Mr.  Evarts.  His  position 
before  the  public  of  his  day  was,  to  be  sure,  in  no  sense  upon 
a  parallel  with  that  of  the  great  tribune  of  the  English 
people,  and  the  traditional  environment,  the  training  and 
education  of  the  two  men  were  wholly  dissimilar.  But  the 
chief  reminders  of  Mr.  Evarts  to-day  are  his  speeches. 
Through  them  can  best  be  recalled  the  man,  whether  they 
were  the  arguments  of  the  advocate,  or  political  speeches,  or 
whether  they  appear  in  the  form  of  elaborate  orations  at  im 
portant  commemorations,  or  in  the  lighter  vein  of  occasional 
addresses. 

At  the  very  outset  of  his  career  Mr.  Evarts  leaped,  at  one 
bound,  into  prominence  as  an  advocate  in  the  profession  in 
which  his  acknowledged  supremacy  formed,  perhaps,  the 
chief  title  to  his  fame.  Just  past  twenty-four  years  old, 
the  duty  was  by  his  senior  associates  assigned  to  him,  as 
junior  counsel  for  the  defendant,  of  opening  to  the  jury  the 
case  of  the  defense  in  the  trial  of  the  notorious  forger,  Mon 
roe  Edwards.  The  opportunities  offered  in  this  cause 
ctlebre  for  a  young  man  to  win  his  spurs  were  unusual  but 
manifest.  That  so  important  a  part  in  the  trial  was  given 
him  by  his  elder  brethren  at  the  bar,  chief  among  whom  was 
Senator  Crittenden  of  Kentucky,  speaks  well  for  the  way 
in  which  he  had  acquitted  himself  in  the  earlier  preparation 
and  conduct  of  the  case,  a  great  part  of  which  had  fallen 
upon  his  shoulders.  Expecting  to  occupy  but  a  few  min 
utes  in  his  address  to  the  jury,  he  spoke  for  an  hour  and  a 
half,  eliciting  at  the  close  a  ripple  of  applause  from  the 
crowded  audience  that  public  interest  in  the  cause  had 

ix 


x  SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

brought  to  the  court  room.  The  applause  of  course  was 
suppressed  by  the  Court.  It  would  have  been  no  more  than 
natural  for  any  young  man,  however  modest,  to  have  felt 
at  least  a  passing  pleasure  in  so  flattering  a  tribute,  but  what 
made  a  deep  impression  upon  Mr.  Evarts  was  the  expression 
of  enthusiastic  encouragement  that  came  from  his  dis 
tinguished  associate.  Many  years  after,  he  thus  speaks,  in 
conversation  with  one  of  Senator  Crittenden's  daughters,  as 
related  in  the  Life  of  Crittenden,  of  their  association  in  this 
cause:  "I  shall  never  forget  that  trial,"  said  Mr.  Evarts,  "in 
connection  with  your  father.  I  was  a  young  man  on  the 
threshold  of  my  professional  career,  and  your  father's  repu 
tation  was  firmly  and  widely  established  as  a  lawyer  and  a 
statesman.  His  cordial  manner  throughout  the  trial  is  most 
gratefully  remembered  by  me,  and  at  its  close  he  asked 
me  to  take  a  walk  with  him.  During  the  walk  he  took 
a  slight  review  of  the  trial,  complimented  me  upon  my 
course  during  its  progress  and  the  ability  he  was  pleased 
to  think  I  had  manifested,  and  in  conclusion,  grasping  my 
hand  with  warmth,  he  said,  'Allow  me  to  congratulate  and 
encourage  you  on  the  course  in  life  you  have  adopted.  I 
assure  you  that  the  highest  honors  of  the  profession  are 
within  your  grasp,  and  with  perseverance  you  may  expect 
to  attain  them.5  These  words  from  Mr.  Crittenden  would 
have  gratified  the  pride  of  any  young  lawyer  and  given  him 
new  strength  for  the  struggles  of  his  profession.  I  can  truly 
say  they  have  been  of  the  greatest  value  to  me  through  life. 
When  I  came  to  Washington  to  take  part  in  the  defense 
of  President  Johnson,  the  associations  of  the  Senate  Chamber 
recalled  the  memory  of  your  father's  words  and  renewed  my 
gratitude  for  his  generous  encouragement  of  my  early  hopes." 
When  he  recalled  these  words  of  Senator  Crittenden  the 
impeachment  trial  of  the  President,  in  which  he  had  taken 
a  leading  part  for  the  defense,  had  but  just  closed  in  a  victory 
for  the  President.  The  succeeding  ten  years  held  yet  in 


INTRODUCTION  xi 

store  for  Mr.  Evarts  a  chief  participation  in  the  great 
Arbitration  at  Geneva,  the  Contest  for  the  Presidency  be 
fore  the  Electoral  Commission,  and  that  cause  cSlebre,  which 
assumed  in  the  imaginations  and  feeling  of  the  whole  coun 
try  the  proportions  of  a  great  public  cause, — the  famous 
trial  of  Tilton  vs.  Beecher.  The  history  of  the  bar  in  this 
country  finds  no  parallel  in  professional  public  employments 
such  as  these  falling  to  the  lot  of  one  man. 

In  reviewing  his  own  career  he  was  wont  to  speak  of  the 
turn  of  events  in  the  country's  history  that  presented  during 
his  active  professional  life  so  many  cases  of  far-reaching 
public  importance  and  interest.  In  this  sense  fortune 
favored  him.  It  is  not  for  the  writer  to  discuss  the  per 
formance,  by  Mr.  Evarts,  of  the  tasks  thus  set  for  him;  but 
this  may  be  said:  that  each  honorable  and  responsible  em 
ployment  fell  to  him  as  the  natural  consequence  of  his  ade 
quate  discharge  of  that  which  had  preceded. 

If  we  were  to  look  for  the  turning  point  in  his  career  at 
which  he  received  a  general  and  permanent  recognition  from 
the  profession  and  the  public  as  a  learned  lawyer  as  well  as  a 
brilliant  and  skilful  advocate,  we  should  find  it  in  his  ap 
pearance  before  the  New  York  Court  of  Appeals  in  1860,  rep 
resenting  the  State  of  New  York  in  the  Lemmon  Slave  Case. 
His  title  to  knighthood  was  then  established,  and  the  pro 
fession  looked  forward  to  him  as  the  future  leader  and  cham 
pion  to  take  the  place  of  his  elders  when  they  were  gone. 
His  former  chief,  Mr.  J.  Prescott  Hall,  thus  writes:  "I 
have  read  your  'Lemmon'  speech  through  twice  and  think 
it  the  best  you  ever  made  and  perhaps  the  best  you  ever  will 
make;  but  you  must  try  to  beat  yourself." 

In  the  Supreme  Court  of  the  United  States  he  was  con 
stantly  employed  in  private  causes  of  importance  and  often 
retained  by  the  Government  in  the  paramount  questions 
that  the  exigencies  of  our  Civil  War  brought  for  solution 
before  that  great  tribunal. 


xii  SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

As  a  lawyer,  Mr.  Evarts's  extraordinary  intellectual  gifts 
enabled  him  to  grasp,  with  a  readiness  and  power  of  ab 
sorption  and  assimilation  that  excited  the  wonder  and  ad 
miration  of  his  contemporaries,  all  the  essential  and  salient 
points  of  the  most  complicated  cases  upon  the  first  interview 
with  his  client  or  his  brother  lawyer.  Mr.  Southmayd,*  for 
many  years  his  partner,  himself  a  very  great  lawyer  of  that 
generation,  was  wont  to  speak  of  this  power  of  apprehension, 
which  would  mentally  anticipate  and  complete  the  situation 
before  the  narration  of  the  facts  was  finished.  The  case  had 
by  that  time  been  accurately  discriminated  and  some  great 
principle  of  law  unerringly  applied.  His  other  distinguished 
partner,  Mr.  Joseph  H.  Choate,  whose  name  completed  the 
title  as  it  added  to  the  fame  of  the  great  firm  of  Evarts, 
Southmayd  &  Choate,  has  spoken  of  him  as  "the  quickest 
witted  man  I  ever  met  on  either  side  the  water." 

The  writer  has  heard  Mr.  Evarts  speak  of  how  he  would  go 
into  a  trial  with  Mr.  Choate  when  the  only  opportunity  he 
had  had  of  any  acquaintance  with  the  case  was  in  the  walk 
from  their  office  to  the  court  room.  In  the  tremendous 
pressure  of  a  busy  lawyer's  laborious  life  those  few  moments 
were  all  that  could  be  spared  to  the  consideration  of  ordinary 
lawsuits,  where  the  detailed  preparation  for  trial  had  fallen 
of  course  into  competent  hands.  But  those  few  moments 
seem  to  have  sufficed  for  effective  service  to  his  junior  at  the 
trial. 

He  treated  all  his  cases  in  a  very  large  way;  he  made 
luminous  the  philosophy  and  science  of  jurisprudence  in  its 
application  to  the  case  in  hand;  he  lifted  the  cause  to  a  very 
high  plane,  and  notably  was  this  true  in  the  Johnson  im 
peachment  and  the  Beecher  trial;  by  remarkable  clearness  of 
statement  he  disentangled  the  greatest  confusion  of  facts  and 
brought  them  into  harmony  with  the  fundamental  principles 
upon  which  the  contention  of  his  cause  rested;  by  apt  al- 

*  Charles  F.  Southmayd,  1824-1911. 


INTRODUCTION  xiii 

lusion  and  illustration,  by  anecdote  and  often  by  a  play  of 
humor  and  fancy,  his  presentation  of  the  driest  case  inter 
ested  the  Court,  as  by  his  forceful  eloquence  he  drove  home 
the  principles  he  advocated;  while  his  unfailing  courtesy 
and  consideration,  wholly  without  the  taint  of  assumed 
superiority,  won  the  admiration  and  affection  of  Bench  and 
Bar. 

But  hand  in  hand  with  these  gifts  went  the  instinct  for 
thoroughness — thoroughness  of  preparation,  thoroughness 
of  presentation.  It  was  not  in  his  nature  to  rest  content  with 
one  cogent,  irrefragable  point  and  by  reiteration  in  various 
forms  and  from  varying  points  of  view  place  his  dependence 
upon  that  and  that  alone;  but,  regardful  of  the  maxim, 
"many  men,  many  minds,"  he  sought  to  convince  by  every 
honorable  and  fair  suggestion  of  reason  that  might  find 
lodgment  and  have  a  persuasive  influence  with  the  tribunal 
he  addressed.  Mr.  O' Conor,*  more  often  opposed  to, 
than  associated  with,  Mr.  Evarts,  once  said  to  a  would-be 
client,  whose  retainer  he  was  for  some  reason  unable  to 
accept,  "Go  to  Mr.  Evarts;  he  will  bring  forward  every 
possible  point,  present  every  possible  argument  the  case  ad 
mits  of." 

Allusion  to  this  trait  recalls  to  the  writer  a  characteristic 
remark  of  Mr.  Evarts  while  he  was  preparing  to  argue  in  the 
Court  of  Appeals  of  New  York  the  case  in  which  he  made  his 
last  appearance  in  any  court.  It  was  not  unusual  to  see 
him,  towards  the  close  of  a  busy  day  of  concentrated  labor 
over  a  brief  or  an  opinion,  come  from  his  own  room  and, 
going  in  to  see  one  of  his  partners  or  sometimes  sitting  in  the 
general  office,  enter  into  a  conversational  discussion  of  the 
subject  that  was  on  his  mind.  In  the  course  of  such  a  dis 
cussion  over  this  case  (Post  vs.  Weil,  now  cited  as  a  leading 
case)  Mr.  Evarts  said,  "Well,  I  have  seven  points,  one  for 
each  judge." 

*  Charles  O' Conor,  1804-1884. 


xiv          SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

Thus,  too,  in  the  trial  of  cases,  some  bit  of  evidence  that 
might  seem  trifling  and  wholly  negligible,  coming  unob 
served  or  unheeded  into  the  testimony,  was  in  his  final  argu 
ment  turned  to  great  and  telling  effect.  He  seized  upon  it 
at  once  and  discerned  clearly  its  bearing  on  the  main  issue; 
and  in  his  final  presentation  its  effect  was  all  the  more  force 
ful  for  being  skilfully  brought  from  its  hiding  place  in  the 
great  mass  of  testimony  and  its  true  character  displayed  in 
the  bright  light  of  his  clear  reason. 

His  oral  arguments  were  as  thorough  as  his  preparation  of 
causes.  His  words  of  advice  to  a  young  lawyer,  "Don't  be 
content  with  a  'good  enough*  argument,"  illustrate  his  own 
rule  in  the  presentation  of  his  causes.  Thus  in  several  cases, 
the  subject  matter  of  which  has  lost  all  shadow  of  present  day 
interest,  his  arguments  remain  not  only  as  models  to  emulate, 
though  difficult  of  attainment,  but  in  themselves  of  interest 
and  instruction.  In  making  a  selection,  therefore,  of  the 
speeches  of  Mr.  Evarts  which  it  might  seem  proper  to  in 
clude  within  the  covers  of  one  book,  we  have  not  felt  that,  in 
the  case  of  his  legal  arguments,  any  more  restricted  rule  of 
choice  need  apply  than  that  which  we  have  endeavored  to 
follow  in  those  of  another  character.  An  inclusion  of  those 
of  historic  interest  should  not  exclude  all  of  those,  the  interest 
in  which  may  be  confined  to  the  profession. 

But  Mr.  Evarts  was  more  than  a  lawyer.  With  what  may 
be  regarded  as  an  hereditary  instinct  for  public  service  he 
very  early  manifested  a  zealous  interest  in  political  affairs. 
He  was  a  devoted  admirer  and  disciple  of  Mr.  Webster,  and 
to  the  last  one  of  his  ablest  defenders.  In  a  long  forgotten 
weekly  publication  called  "The  New  World,"  under  the 
editorship  of  Park  Benjamin,  there  appear  in  the  issues  of 
October  2  and  October  16,  1841,  two  political  articles  from 
Mr.  Evarts's  pen  entitled  respectively,  "Mr.  Webster's 
Position  "  and  "  Mr.  Tyler  and  The  Whig  Party."  The  first 
was  in  answer  to  the  attacks  upon  Mr.  Webster  from  a  large 


INTRODUCTION  xv 

body  of  the  Whigs  because  of  his  remaining  as  Secretary  of 
State  in  Tyler's  Cabinet,  and  the  second  a  review  of  the 
general  political  situation  and  of  President  Tyler's  adequacy 
to  meet  it,  as  it  was  affected  by  the  breaking  apart  of  the 
two  elements  of  the  party.  For  this  disruption  of  the  party, 
the  elevation  to  the  Presidency  of  Mr.  Tyler,  through  the 
death  of  President  William  Henry  Harrison,  was  largely 
responsible. 

These  articles,  among  the  earliest  of  the  young  lawyer's 
essays  at  political  discussion  and  interesting  solely  on  this 
account,  may  appropriately  find  a  place  in  this  collection. 
Their  style  reminds  one  of  the  Letters  of  Junius,  and  one  may 
safely  conjecture  a  conscious  or  unconscious  imitation,  as  a 
model,  of  this  unknown  writer.  His  own  comments  on  these 
early  efforts  throw  an  interesting  side  light  on  their  produc 
tion  and  their  effect  so  far  as  it  concerned  him.  "I  have 
sent  you  a  copy, "  he  writes  to  his  friend,  Richard  H.  Dana, 
Jr.,  under  date  of  October  2,  1841,  "of  this  week's  'New 
World '  as  containing  for  its  *  leader '  an  article  by  me — I  am 
tired  of  hearing  '  Mr.  Webster's  Position'  spoken  of  in  the 
tone  used  in  Whig  circles  here,  and  have  written  the  paper 
con  amore.  It  is  as  long  as  sixteen  pages  of  common  pam 
phleteering  and  was  written  after  8  o'clock  one  evening  and 
in  the  printer's  hands  next  morning  at  7,  so  that  it  can  hardly 
be  deemed  an  elaborate  production.  As  I  am  proposing  soon 
to  make  my  pen  venal,  I  am  writing  now  for  practice  and 
facility  and  am  not  altogether  displeased  with  this  first  at 
tempt.  If  your  own  judgment  should  be  favorable,  suppose 
you  do  me  the  honor  to  submit  it  to  your  father's  indulgent 
opinion." 

Again,  on  October  12,  1841,  he  writes,  "I  am  obliged  to 
your  father  for  his  friendly  criticism  on  my  fugitive  article. 
.  .  .  This  week  I  have  promised  an  article  on  Tyler,  but 
as  it  must  be  ready  early  to-morrow  morning  and  is  as  yet 
unwritten  I  am  doubtful  whether  it  appears."  Whatever 


xvi          SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

may  have  been  the  judgment  of  the  elder  Dana,  we  may  well 
suppose  it  to  have  been  for  the  most  part  literary.  How 
this  young  man's  efforts  impressed  others,  he  with  modest 
pride  discloses  to  his  friend  Dana,  when  in  January,  1842,  he 
writes:  "Professional  business  has  claimed  so  much  of  my 
attention  that  my  'political  pen'  (which  Professor  Felton 
wrote  Benjamin  was  one  of  'the  most  powerful  ones  in  the 
country')  has  been  idle.  During  my  late  visit  to  Washing 
ton,  I  had  the  honor  of  an  interview  (at  his  desire)  with  his  Ex 
cellency  the  Secretary  of  State,  who,  as  Mr.  Choate  informed 
me,  was  delighted  with  my  article.  I  am  more  amused  than 
seriously  gratified  at  the  results  of  my  aimless  and  casual 
efforts."  "His  Excellency  the  Secretary  of  State"  was  of 
course  Daniel  Webster  and  Mr.  Choate  was  Rufus  Choate, 
then  occupying  Mr.  Webster's  seat  in  the  Senate. 

Mr.  Evarts's  "political  pen"  remained  idle  for  the  rest  of 
his  life;  but  in  every  discussion  of  public  affairs  his  voice 
was  heard  where  it  might  affect  the  course  of  public  opinion. 

During  the  period  following  the  Compromise  Measures 
of  1850  and  up  to  the  election  of  Lincoln  there  was  one 
dominant  subject  of  either  public  or  private  discussion.  We 
refer,  of  course,  to  the  subject  of  slavery,  its  existence  in 
the  Southern  States,  the  supremacy  of  its  advocates  in  the 
councils  of  the  Government,  and  their  efforts  to  extend 
the  institution  throughout  the  whole  country  as  a  part  of  the 
national  policy. 

At  the  time  of  the  passage  of  the  Compromise  measures, 
Mr.  Evarts,  then  thirty-two  years  old,  had  attained  such 
prominence  that,  at  the  great  Union  meeting  at  Castle 
Garden  in  New  York,  he  was  one  of  the  speakers.  The  meet 
ing  was  called  together  to  sustain  before  the  people  the  policy 
of  the  Government  in  the  Compromise  measures,  and  Mr. 
Evarts  spoke  in  maintenance  of  the  Constitutionality  of  the 
Fugitive  Slave  Law  and  in  earnest  appeal  for  obedience  to 
its  provisions  by  the  people  of  the  Northern  States.  This 


INTRODUCTION 

"Castle  Garden"  speech,  his  first  recorded  public  utterance, 
was,  in  a  narrower  sphere,  as  much  a  subject  of  discussion, 
as  it  bore  upon  his  attitude  towards  the  burning  question  of 
the  day,  as  that  much  debated  seventh  of  March  speech  of 
his  great  exemplar  in  the  Senate.  In  the  years  that  followed, 
the  Castle  Garden  speech  was  brought  forward  against  Mr. 
Evarts  as  evidence  of  a  leaning  in  favor  of  slavery  not  to  be 
expected  and  much  to  be  deplored  in  one  of  his  antecedents. 

The  public  mind  could  not  reconcile  an  abhorrence  of 
slavery  as  an  institution  with  adherence  to  the  Constitution 
and  the  Law,  that  recognized  the  institution  as  a  necessary 
evil  and  supported  the  rights,  under  the  Constitution,  of  slave 
owners,  in  the  localities  where  the  system  of  slavery  pre 
vailed.  No  man  was  ever  more  hostile  to  slavery  than  Mr. 
Evarts,  throughout  his  life,  and  it  perhaps  was  fortunate  for 
a  final  estimate  that  the  Castle  Garden  speech,  unlike  the 
seventh  of  March  speech,  was  at  the  beginning  and  not  at 
the  end  of  a  career.  In  the  heated  state  of  the  public  mind 
and  conscience  over  this  all-absorbing  question  of  slavery  it 
was  perhaps  natural  that  everyone  who  stood  for  the  pres 
ervation  of  the  Union  and  the  Constitution  and  the  sanctity 
of  law  should  be,  though  illogically  and  unjustly,  suspected 
of  a  friendly  complacency  towards  the  institution  of  slavery 
or  at  least  of  indifference  to  its  evils.  But  any  doubt  or 
confused  notion  of  Mr.  Evarts' s  attitude  towards  slavery 
was  set  at  rest  when  he  gave  one  fourth  of  his  property  to 
the  Emigrant  Aid  Company  in  the  "Kansas  Crusade," 
when  he  spoke  at  the  Broadway  Tabernacle  in  1856,  and 
when  he  made  his  argument  in  the  Lemmon  Slave  Case. 

The  circumstances  of  Mr.  Evarts's  contribution  to  the 
cause  of  the  Emigrant  Aid  Company  is  thus  related  by  Mr. 
Eli  Thayer  in  an  account  of  a  meeting  of  gentlemen  at  a 
private  house  in  New  York  in  1855:  "After  my  address, 
which  occupied  a  little  more  than  an  hour,  a  young  man, 
tall  and  thin,  arose  and  began  to  speak  as  follows:  'Ever 


xviii       SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

since  my  Castle  Garden  speech,  you  know  I  have  been  called 
a  Hunker  Whig.  Now,  what  reason  you  had  to  suppose 
that  such  a  man  would  care  whether  slavery  were  extended 
or  restricted  I  do  not  know.  Therefore  I  do  not  know  your 
reasons  for  inviting  me  to  attend  this  meeting.  But  you 
did  invite  me  and  I  have  come.  I  am  glad  that  I  am  here 
and  I  thank  you  for  calling  me.  I  have  heard  many  speeches, 
on  many  occasions,  upon  the  slavery  question;  but  never 
until  now  have  I  listened  to  any  practical  elucidation  of  the 
subject.  Like  thousands  of  others  I  have  been  waiting  for 
an  opportunity  to  contend  successfully  against  slavery  with 
out  violating  the  laws  or  sacrificing  the  Constitution  and  the 
Union.  Such  an  opportunity  is  now  presented.  I  rejoice 
in  it  and  shall  embrace  it.  Now,  though  I  am  called  a 
Hunker  Whig  and  though  I  am  poor,  for  I  am  not  worth  four 
thousand  dollars,  I  joyfully  give  my  cheque  to  the  Emigrant 
Aid  Company  for  one  thousand  dollars.'  This  speaker  was 
William  M.  Evarts."  * 

No  method  of  selection  should  properly  exclude  these 
earliest  political  speeches.  They  are  as  important  and  as 
interesting  in  their  representative  significance  as  those  more 
elaborate  productions  when  Mr.  Evarts  was  the  sole  speaker 
of  the  evening  before  a  crowded  audience  in  Cooper  Union, 
upon  the  invitation  of  prominent  citizens  of  New  York  to 
give  his  views  in  public  on  the  issues  of  the  day. 

Mr.  Evarts's  repute  as  a  man  of  public  spirit,  as  a  scholar 
and  an  orator  soon  brought  to  him  invitations  to  deliver 
addresses,  in  the  language  of  the  day,  "orations,"  at  im 
portant  celebrations.  Of  these  the  first  was  delivered  in 
1853  at  the  centenary  of  the  Linonian  Society  at  Yale, 
the  last  in  1888  at  the  dedication  at  Auburn  of  the  statue  of 
his  political  friend  and  leader,  William  H.  Seward. 

Present  day  readers  need  to  be  reminded  of  the  fame  of 
the  great  debating  societies  at  Yale  College  that  flourished 

*  A  History  of  the  Kansas  Crusade,  by  Eli  Thayer,  p.  203. 


INTRODUCTION  xix 

from  the  latter  part  of  the  eighteenth  to  the  middle  of  the 
nineteenth  century.  They  furnished  to  the  youth  of  those 
generations  who  sought  their  education  at  Yale  College  a 
nursery  and  training  ground  for  the  development  of  those 
moral  and  intellectual  faculties  that  best  adapt  a  man  to  a 
position  of  influence  and  power  in  the  community  in  which 
his  lot  is  thrown.  Doubtless,  in  the  fuller  and  more  com 
plex  life  of  our  universities  to-day  there  may  be  found, 
among  the  student  activities,  organizations  that  take  the 
place  and  have  the  influence  of  these  old  debating  societies. 
But  it  was  with  keen  and  unfeigned  regret  at  the  time  that 
the  older  graduates  of  Yale  saw  the  uninterrupted  decline 
and  final  discontinuance  of  these  institutions,  beyond  the 
power  of  all  efforts  to  revive  them.  The  place  they  filled 
in  the  college  life  of  his  day,  and  the  purposes  they  were 
calculated  to  accomplish  were  thus  described  by  Mr.  Evarts, 
in  this  oration  on  "Public  Life,"  in  the  following  passage: 

"While,  then,  we  greet  the  college  as  the  gracious  mother 
of  our  intellectual  life,  from  whose  full  breasts  we  drew  the 
nutriment  of  learning,  it  is  in  this  LINONIAN  SOCIETY  that 
we,  who  have  met  for  this  centennial  commemoration,  found 
the  playground  and  arena,  the  palestra,  the  forum,  the 
agora,  in  which  the  new  born  vigor  was  exercised  and  trained. 
It  was  here  that  the  faculties  acquired  were  first  applied, 
and  here  had  the  prelude  and  preparation  for  the  public 
labors  and  conflicts  of  real  life." 

These  commemorative  addresses,  six  in  number,  include, 
besides  those  mentioned  above,  the  New  England  Society 
oration,  entitled  "The  Heritage  of  the  Pilgrims,"  delivered 
in  1854  before  the  New  England  Society  of  New  York,  his 
Eulogy  on  Chief  Justice  Chase  delivered  upon  the  invitation 
of  the  Alumni  of  Dartmouth  College  at  the  commencement 
of  1874,  his  centennial  oration  delivered  at  Philadelphia, 
July  4,  1876,  and  his  oration  at  Newburgh,  New  York,  in 
1883,  on  the  invitation  of  the  joint  committee  of  Congress, 


xx  SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

at  the  centennial  of  Washington's  Headquarters  at  New- 
burgh.  Thus  the  honor  was  awarded  to  him  of  delivering 
the  oration  at  the  last,  as  well  as  at  the  first,  of  the  series  of 
national  centennial  celebrations  of  the  Revolutionary  period. 

These  formal  addresses  were  not  mere  exhibitions  of 
rhetorical  phrase  making,  but  scholarly  discourses,  pregnant 
with  the  philosophy  of  history  and  of  politics,  clothed  in 
stately  English  and  inspired  with  a  genuine  love  of  his  country 
and  reverence  for  its  institutions. . 

Through  a  rare  and  very  happy  combination  of  faculties 
the  fame  of  Mr.  Evarts  as  an  advocate  and  an  orator  was 
matched  by  his  reputation  as  a  wit.  There  is  hardly  a  book 
of  contemporaneous  biography  or  reminiscences  that  does 
not  contain  some  bright  saying,  some  mot,  some  witticism  of 
Mr.  Evarts,  and  there  were  not  infrequently  attributed  to 
him,  as  is  always  the  case  with  such  reputations,  jests  that 
on  their  face  bore  the  stamp  of  counterfeit.  With  this 
gift,  combined  with  a  merry  and  spontaneous  humor,  he 
always  found  a  welcome  at  public  dinners  either  as  presiding 
or  as  one  of  the  principal  speakers.  Mr.  Carter,*  himself  a 
great  lawyer  and  orator,  in  a  graceful  and  appreciative  trib 
ute  to  Mr.  Evarts,  thus  spoke  of  this  feature  of  his  career : 

"In  another  field — and  one  of  no  small  consequence — he 
was  facile  princeps;  I  mean  that  of  after-dinner  speaking. 
He  may  be  said  to  have  created  a  revolution  in  that  art. 
His  brilliant  wit,  his  command  of  language,  his  large  ac 
quaintance  with  men  and  things  and  his  keen  sense  of  humor 
made  him  a  most  captivating  speaker  on  such  occasions. 
And  this  seemed  so  easy  in  him  that  many  others  thought  it 
was  really  easy,  and  he  had  many  imitators,  who,  however, 
were  not  often  so  successful." 

An  appreciative  editorial  in  one  of  the  leading  journals  at 
the  time  of  Mr.  Evarts's  death  thus  speaks  of  these  social 
gifts: 

*  James  Coolidge  Carter,  1827-1905. 


INTRODUCTION  xxi 

"He  was  not  only  a  great  lawyer,  an  able  statesman  and  a 
great  character,  but  he  was  a  unique  New  Yorker.  His  was 
the  wit,  diamond-pointed,  that  sparkled  without  wounding. 
His  was  the  humor  as  debonair  as  dry,  and  as  genial  as  subtle. 
His  was  the  power  of  epigram,  antithesis  or  characterization 
that  gave  to  thought  the  light  for  its  entrance  into  the  mind, 
and  to  fancy  the  barb  that  winged  its  course  to  the  recesses  of 
the  imagination  and  to  the  centre  of  the  heart.  His  was  the 
anecdotal  power  that  united  the  finality  of  culture  with  the 
simplicity  of  experience,  and  which  gilded  conversation  with 
the  sheen  of  gold,  and  gave  to  it  the  charm  that  made  listen 
ing  a  luxury,  enjoyment  contagious,  imitation  a  failure, 
emulation  a  temerity  and  admiration  spontaneous.  And  all 
this  concurred  with  an  involution  and  circumlocution  of 
oratorical  style  that,  whether  natural  or  acquired,  was  alike 
the  envy  and  despair  of  colleagues  or  of  rivals. "  * 

Of  Mr.  Evarts's  "style"  to  which  allusion  is  made  by  this 
sympathetic  writer  it  may  be  said  that  as  the  printed  page 
diminishes  the  force  of  the  spoken  word  as  uttered,  so  it 
magnifies  into  a  fault  a  method  and  form  of  expression  that 
was  most  effective  as  employed  by  Mr.  Evarts.  It  is  the 
spoken  language  of  the  man,  aptly  and  often  finely  expressive 
of  the  thought  behind  it,  that  is  to  be  found  in  the  pages  that 
follow.  In  those  productions,  which  Mr.  Evarts  was  wont 
to  call  his  "set  orations,"  and  which  were  delivered  from 
manuscript,  where  there  was  the  opportunity  for  careful  and 
critical  preparation,  is  to  be  found  the  best  and  truest  ex 
amples  of  his  "style,"  which  may  or  may  not  meet  the  re 
quirements  of  the  best  literary  canons.  One  may  find  in  the 
quaint  words  of  Fuller  where  he  speaks  of  Richard  Hooker, 
the  "judicious"  Hooker,  an  apt  description  of  Mr.  Evarts's 
style.  The  entertaining  theologian  Fuller  writes  thus: 
"His  style  was  long  and  pithy,  driving  on  a  whole  flock  of 
several  clauses,  before  he  came  to  the  close  of  a  sentence;  so 

*St.  Clair  McKelway,  in  the/Brooklyn  Eagle,'* 


xxii         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

that  when  the  copiousness  of  his  style  met  not  with  propor 
tionable  capacity  in  his  auditors,  it  was  unjustly  censured  for 
'  perplexed,  tedious  and  obscure/55  * 

Let  us  record  here  also  the  witty  retort  of  Mr.  Evarts  to 
one  who  in  good  natured  banter  had  twitted  him  on  his  long 
sentences.  In  1879,  being  then  Secretary  of  State,  he  pre 
sided  at  the  public  dinner  in  New  York  tendered  to  Mr. 
Thomas  Bailey  Potter,  one  of  the  few  members  of  parliament 
who  had  been,  in  England,  staunch  supporters  of  the  north 
ern  side  during  the  Civil  War.  Mr.  Samuel  D.  Babcock, 
then  president  of  the  New  York  Chamber  of  Commerce,  in 
closing  his  speech  at  the  dinner,  had  thus  expressed  himself: 
"Let  us  hope,  gentlemen,  that  if  differences  should  arise  in 
the  future  between  Great  Britain  and  the  United  States, 
men  will  be  found  like  Mr.  Potter  and  Secretary  Evarts,  who* 
after  a  calm  and  dispassionate  discussion,  clothed  though  it  be 
with  sentences  as  long  as  the  English  language  can  supply, 
will  arrive  at  an  amicable  settlement.55 

Mr.  Evarts,  on  rising  to  introduce  the  next  speaker, 
began  by  saying  that  the  English  was  a  language  the  true 
efficacy  of  which  the  gentleman  who  last  sat  down  did  not 
seem  to  appreciate.  Not  only  was  it  fine  in  quality  but  in 
quantity  it  was  absolutely  marvelous.  What  wonder  then 
that  a  public  servant  should  try  to  check  the  volubility  of 
his  countrymen  by  consuming  large  portions  of  it  himself. 
He  then  added,  "I  don5t  wish  that  our  guest  should  carry 
away  with  him  a  wrong  impression  in  regard  to  this  alleged 
fault.  The  only  persons  in  this  country  who  are  opposed  to 
long  sentences  are  the  criminal  classes.55 

Mr.  Evarts's  speeches,  as  we  have  seen,  quite  naturally 
classify  themselves  under  these  four  divisions:  professional 
arguments,  political  speeches,  commemorative  orations  and 
occasional  addresses,  including  in  the  last  his  after-dinner 
speeches.  Any  effort  to  make  a  selection  must  meet  the 

*  Fuller's  Church  History,  IX,  s.  vii,  49,  53. 


INTRODUCTION  xxiii 

hazard  of  omitting  or  including  one  or  more  as  to  which,  for 
this  or  that  consideration,  another's  judgment  would  apply 
a  different  rule.  Many  motives  have  had  their  influence 
upon  the  result  and  if  the  general  and  principal  purpose  of 
the  publication  is  amply  met  it  will  suffer  no  serious  abate 
ment  by  any  incidental  errors  of  choice  in  minor  instances. 
These  arguments  and  speeches  are  gathered  from  many 
scattered  sources,  from  newspapers  and  pamphlets  and  from 
separate  publications  of  more  permanent  form,  and  have 
been  thus  brought  together  that  they  may  be  readily  acces 
sible,  that  they  may  serve  to  preserve  the  memory  of  Mr. 
Evarts  and  that  they  may  be  in  a  permanent  form  of  pres 
ervation  themselves.  The  writer  makes  here  his  grateful 
acknowledgment  for  valuable  aid  received  in  the  preparation 
of  this  work  from  Mrs.  Graham  B.  Elaine,  a  granddaughter 
of  Mr.  Evarts. 

We  have  refrained  in  these  introductory  words  from  any 
strictly  biographical  statement  of  Mr.  Evarts's  career,  con 
tent  with  such  suggestive  allusions  as  occur  in  considering  his 
many  and  diversified  attainments.  He  was  first  and  last 
the  great  lawyer  and  advocate;  one  who,  as  Pericles  for 
Athens,  had  for  his  profession  a  "lover's  enthusiasm."  He 
found  in  its  active  and  large  employments  ample  scope  for 
the  widest  exercise  of  his  intellectual  powers,  and  opportunity 
to  exert  a  great  moral  influence  in  his  day  and  generation, 
while  the  recognized  relations  that  existed  between  the  pro 
fession  and  public  discussion  and  public  action  afforded  the 
occasion  for  an  active  and  constant  participation  in  this 
wider  field  of  influence.  It  was  within  the  ranks  of  the  pro 
fession  that  his  close  friendships  were  to  be  found,  and  from 
its  ranks  came  the  most  informed  and  sincerest  appreciation. 
If  we  look  for  some  expression  from  him  that  may  exhibit 
his  personal  relations,  his  personal  feelings,  towards  the 
members  of  the  profession  that  he  loved  and  reverenced,  we 
may  find  it  in  the  closing  words  of  his  response  at  the  public 


xxiv        SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

dinner  tendered  him  by  the  Bar  of  New  York  in  1868,  at 
which  Mr.  O' Conor  presided.  In  concluding  his  speech  on 
this  occasion  he  says: 

"And,  now,  Mr.  President,  closing  these  observations, 
desultory  and  far  too  long,  I  beg  to  be  permitted  to  say  a 
word  or  two  about  the  good  fortune  that  has  attended  my  life. 
I  do  not  know  that  in  the  thirty  years  which  have  almost 
elapsed  since,  as  a  student, fl  came  to  your  city,  any  man  has 
ever  done  me  an  unkindness  or  an  injustice;  and  if  I  could 
feel  that  I  might  say  the  same  of  my  own  conduct, — that  I 
have  never  done  an  unkindness  or  an  injustice  to  a  brother 
in  our  profession — if  I  could  say  this,  I  should  feel  that  I  had 
in  some  degree  repaid  the  great  debt  which  I  owe  to  you  all. 

"But  it  seems  to  me  as  if  I  were  indebted  to  others  from  the 
beginning  to  the  end.  I  do  not  speak  of  how  much  I  owe 
to  my  masters  in  the  law  school,  Story  and  Greenleaf — but  I 
may  be  permitted  to  say  that  no  man  can  owe  a  greater  debt 
to  a  teacher,  a  master,  an  example  and  a  kind  friend,  than  I 
owe  to  Daniel  Lord,  and  I  may  be  permitted  to  say,  too,  that 
no  young  man  can  be  better  aided  in  the  early  days  of  his 
profession  than  I  was  by  Prescott  Hall,  my  master  and  my 
friend.  And  my  partners  still  about  me — my  partners,  never 
changed,  but  only  added  to  in  twenty-eight  years  of  profes 
sional  life — they  are  present  at  this  table,  and  your  knowl 
edge  of  them  forbids  and  makes  it  unnecessary  for  me  to  speak 
of  them.  I  recognize  the  debt  to  all — the  constant  obliga 
tion;  and  when  at  last  the  seal  shall  be  set  to  my  life  (until 
which  we  are  admonished  to  call  no  man  fortunate)  I  may 
well  be  deemed  fortunate  if  any  law  student,  any  young 
lawyer  or  any  dying  veteran  of  the  profession  shall  feel  even 
to  a  moderate  degree  toward  me  as  I  do  toward  these  my 
masters  and  my  friends. " 

We  venture  to  add  the  answer  to  his  wish  in  the  sincere 
and  fervent  words  of  that  other  great  lawyer,  Mr.  Carter, 
when  he  said  of  Mr,  Everts,  "In  his  death  a  great  light  has 


INTRODUCTION  xxv 

been  extinguished, — no,  not  altogether  extinguished.  It 
will  long  continue  to  shine  in  his  many  noble  utterances  which 
history  and  literature  will  preserve;  in  the  memory  of  the 
patriotic  services  which  he  rendered  to  his  country;  in  the 
affectionate  regard  of  a  thousand  friends,  and  in  the  bright 
example  he  set  as  a  citizen,  statesman  and  man." 

SHERMAN  EVARTS. 
Windsor,  Vermont. 
February  6,  1918. 


PROFESSIONAL  ARGUMENTS 


BRIEF  AND  ARGUMENT  IN  THE  NEW  YORK 
COURT  OF  APPEALS  IN  THE  LEMMON  SLAVE 
CASE 

NOTE 

In  November,  1852,  Jonathan  Lemmon  and  Juliet  Lemmon,  his 
wife,  citizens  and  residents  of  the  State  of  Virginia,  came  to  New 
York  City  by  boat  from  Norfolk,  Virginia,  bringing  with  them 
eight  negroes,  who  were  in  Virginia  held  as  slaves  and  as  the  prop 
erty  of  Mrs.  Lemmon. 

Their  ultimate  destination  was  Texas  where  slavery  was  an  in 
stitution  recognized  by  the  laws  of  that  State.  It  was  their  pur 
pose  to  remain  in  the  City  of  New  York  only  for  the  short  interval 
between  their  arrival  and  the  departure  from  that  port  of  a  boat 
for  Texas,  upon  which  it  was  their  intention  to  embark  in  the  com 
pletion  of  their  journey.  They  lodged  their  slaves  in  a  house  in 
Carlisle  Street,  New  York,  where  they  were  discovered  by  a  negro 
named  Louis  Napoleon.  He  thereupon  presented  to  the  Hon. 
Elijah  Paine,  a  judge  of  the  Superior  Court  of  the  City  of  New 
York,  his  petition  for  a  writ  of  Habeas  Corpus,  for  the  production 
before  him  of  the  eight  negroes,  that  the  legality  of  their  detention 
under  restraint  might  be  judicially  determined.  The  writ  was 
issued  November  6,  1852,  and  on  the  return  of  the  writ  an  answer 
was  interposed  setting  up  the  ownership  of  the  eight  negroes  by 
Mrs.  Lemmon  under  the  laws  of  Virginia  and  that  their  sojourn  in 
New  York  was  in  transitu  merely,  on  the  way  to  another  slavehold- 
ing  State,  with  no  purpose  or  intent  of  remaining  within  the  juris 
diction  of  the  State  of  New  York  any  longer  than  the  exigencies  of 
the  journey  from  Virginia  to  Texas  by  the  route  taken  required. 
To  this  return  to  the  writ  the  petitioner  interposed  a  general  demur 
rer,  stating  that  the  facts  set  forth  did  not  constitute  a  legal  cause 
for  the  restraint  of  the  liberty  of  the  negroes. 

Upon  the  questions  of  law  thus  raised  the  case  was  heard.  E. 
D.  Culver  and  John  Jay  appeared  for  the  petitioner,  while  H.  D. 
Lapaugh  and  Henry  L,  Clinton  represented  the  respondent.  Judge 


4  SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

Paine  decided  the  case  in  favor  of  the  petitioner  and  by  final  order, 
dated  November  13,  1852,  gave  the  negroes  their  freedom.  The 
case  is  fully  reported  in  New  York  Superior  Court  Reports,  5  Sand- 
ford,  681. 

Immediately  upon  the  rendering  of  this  decision  the  respondent 
sued  out  a  writ  of  certiorari  to  bring  the  case  up  for  review  to  the 
general  term  of  the  Supreme  Court. 

The  decision  of  Judge  Paine  excited  universal  comment  in  tones 
of  admiration  or  execration  as  the  sympathies  and  judgments  of 
people  inclined  to  one  side  or  the  other.  The  Governor  of  Vir 
ginia,  by  authority  of  its  Legislature,  directed  the  Attorney-General 
of  the  State  to  prosecute  the  appeal  in  connection  with  such  counsel 
as  he  might  employ.  Under  this  authority  Mr.  Charles  O'Conor 
was  engaged  as  counsel  in  behalf  of  the  State  of  Virginia.  In  1855, 
under  similar  action  of  the  Legislature  of  New  York,  the  Governor 
of  that  State  appointed  E.  D.  Culver  and  Joseph  Blunt  as  counsel 
to  be  associated  with  Ogden  Hoffman,  then  Attorney-General  of 
New  York,  to  defend  the  interests  of  the  State  on  the  appeal  pros 
ecuted  by  the  State  of  Virginia.  On  the  death  of  Mr.  Hoffman  in 
1856,  the  Governor  appointed  Mr.  Evarts,  in  his  place,  to  represent 
the  State  of  New  York  on  the  appeal.  The  case  was  argued  before 
the  general  term  of  the  Supreme  Court  in  December,  1857,  and  the 
decision  of  the  Court  below  was  affirmed,  Justice  Roosevelt  dissent 
ing.  The  case  is  reported  in  New  York  Supreme  Court  Reports, 
26  Barbour,  270.  An  appeal  was  taken  to  the  Court  of  Appeals. 
The  case  was  argued  in  that  Court  on  January  24, 1860,  and  follow 
ing  days,  by  Mr.  O'Conor  for  the  appellants,  and  by  Mr.  Joseph 
Blunt  and  Mr.  Evarts  for  the  respondent.  In  March,  1860, 
the  Court  affirmed  the  decisions  below.  Opinions  were  delivered 
for  affirmance  by  Judge  Denio  and  Mr.  Justice  Wright,  Judge 
Davies  and  Justices  Bacon  and  Welles  concurring.  Chief  Judge 
Comstock  and  Mr.  Justice  Clerke  dissented,  an  opinion  being  de 
livered  by  Mr.  Justice  Clerke  for  reversal  of  the  Supreme  Court. 
Judge  Selden  expressed  no  opinion.  The  case  is  reported  in  20 
New  York  Court  of  Appeals  Reports,  page  562.  Mr.  Evarts  sub 
mitted  the  following  points  and  delivered  the  argument  that  fol 
lows. 


THE  LEMMON  SLAVE j  CASE 
POINTS* 

FIRST  POINT. — The  writ  of  Habeas  Corpus  belongs  of  right 
to  every  person  restrained  of  liberty  within  this  State,  under 
any  pretense  whatsoever,  unless  by  certain  judicial  process  of 
Federal  or  State  authority. 

2  Rev.  Stat.,  p.  563,  No.  21. 

This  right  is  absolute,  (1)  against  legislative  invasion,  and 
(2)  against  judicial  discretion. 
Cons.,  Art.  1,  No.  4. 
2  Rev.  Stat.,  p.  565,  No.  31. 

In  behalf  of  a  human  being,  restrained  of  liberty  within 
this  State,  the  writ,  by  a  legal  necessity,  must  issue. 

The  office  of  the  writ  is  to  enlarge  the  person  in  whose 
behalf  it  issues,  unless  legal  cause  be  shown  for  the  restraint 
of  liberty  or  its  continuation;  and  enlargement  of  liberty, 
unless  such  cause  to  the  contrary  be  shown,  flows  from  the 
writ  by  the  same  legal  necessity  that  required  the  writ  to  be 
issued. 

1  Rev.  Stat.  567,  No.  39. 

SECOND  POINT. — The  whole  question  of  the  case,  then,  is, 
does  the  relation  of  slave-owner  and  slave,  which  subsisted 
in  Virginia  between  Mrs.  Lemmon  and  these  persons  while 
there,  attend  upon  them  while  commorant  within  this 
State,  in  the  course  of  travel  from  Virginia  to  Texas,  so  as  to 
furnish  legal  cause  for  the  restraint  of  liberty  complained  of, 
and  so  as  to  compel  the  authority  and  power  of  this  State  to 
sanction  and  maintain  such  restraint  of  liberty. 

*  On  the  argument  of  the  case  Mr.  Evarts  submitted  these  Points,  stating 
that  they  were  intended  to  be  taken  in  connection  with  those  of  his  associate, 
Mr.  Blunt,  and  that  he  had  not  thought  it  necessary  to  repeat  the  citations  to 
be  found  on  Mr.  Blunt's  points,  and  on  which  they  both  relied. 

5 


6  SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

I.  Legal  cause  of  restraint  can  be  none  other  than  an 
authority  to  maintain  the  restraint  which  has  the  force  of 
law  within  this  State. 

Nothing  has,  or  can  claim,  the  authority  of  law  within  this 
State,  unless  it  proceeds — 

(A)  From  the  sovereignty  of  the  State,  and  is  found  in  the 
Constitution  or  Statutes  of  the  State,  or  in  its  unwritten 
common  (or  customary)  law;  or — 

(B)  From  the  Federal  Government,  whose  Constitution 
and  Statutes  have  the  force  of  law  within  this  State. 

So  far  as  the  Law  of  Nations  has  force  within  this  State, 
and  so  far  as  "by  comity,"  the  laws  of  other  sovereignties 
have  force  within  this  State,  they  derive  their  efficacy,  not 
from  their  own  vigor,  but  by  administration  as  a  part  of  the 
law  of  this  State. 

Story  Confl.  Laws,  Nos.  18,  20,  23,  25,  29,  33,  35,  37,  38. 

Bank  of  Augusta  vs.  Earle,  13  Pet.  519,  589. 

Dalrymple  vs.  Dalrymple,  2  Hagg.  Consist.  Rep.  59. 

Dred  Scott  vs.  Sanford,  19  How.  460-1,  486-7. 

II.  The  Constitution  of  the  United  States  and  the  Federal 
Statutes  give  no  law  on  the  subject. 

The  Federal  Constitution  and  legislation  under  it  have,  in 
principle  and  theory,  no  concern  with  the  domestic  institu 
tions,  the  social  basis,  the  social  relations,  the  civil  condi 
tions,  which  obtain  within  the  several  States. 

The  actual  exceptions  are  special  and  limited,  and  prove 
the  rule.  They  are — 

1.  A  reference  to  the  civil  conditions  obtaining  within  the 
States,  to  furnish  an  artificial  enumeration  of  persons  as  the 
basis  of  Federal  Representation  and  direct  taxation,  distribu- 
tively  between  the  States. 

2.  A  reference  to  the  political  rights  of  suffrage  within  the 
States  as,  respectively,  supplying  the  basis  of  the  Federal 
suffrage  therein. 


THE  LEMMON  SLAVE  CASE  7 

3.  A  provision  securing  to  the  citizens  of  every  State 
within  every  other  the  privileges  and  immunities  (whatever 
they  may  be)  accorded  in  each  to  its  own  citizens. 

4.  A  provision  preventing  the  laws  or  regulations  of  any 
State  governing  the  civil  condition  of  persons  within  it,  from 
operating  upon  the  condition  of  persons  "held  to  service  or 
labor  in  one  State,  under  the  laws  thereof,  escaping  into 
another." 

None  of  these  provisions,  in  terms  or  by  any  intendment, 
support  the  right  of  the  slave-owner  in  his  own  State  or  in 
any  other  State,  except  the  last.  This,  by  its  terms,  is 
limited  to  its  special  case,  and  necessarily  excludes  Federal 
intervention  in  every  other. 

Const.  U.  S.,  Art.  1,  sec.  2,  subd.  1  and  3. 

Art.  IV,  sec.  2,  subd.  1  and  3. 

Laws  of  Slave  States,  and  of  Free  States,  on  Slavery. 

Ex  parte  Simmons,  4  W.  C.  C.  R.  396. 

Jones  vs.  Van  Zandt,  2  McLean,  597. 

Groves  vs.  Slaughter,  15  Peters,  506,  508-510. 

Prigg  vs.  Perm,  16  Peters,  611-612,  622-3-5. 

Strader  vs.  Graham,  10  How.  82,  93. 

New  York  vs.  Miln,  11  Peters,  136. 

Dred  Scott  vs.  Sanford,  19  How.  393. 

Ch.  J.  452. 

Nelson,  J.  459,  461. 

Campbell,  J.  508-509,  516-17. 

The  clauses  of  the  Constitution  of  the  United  States 
touching  the  commercial  power  of  the  Federal  Government 
have  no  effect,  directly  or  indirectly,  upon  the  question  under 
consideration. 

Cons.  U.  S.,  Art.  1,  sec.  8,  subd.  3. 

Cons.  U.  S.,  Art.  1,  sec.  9,  subd.  1,  5. 

The  Passenger  Cases,  7  How.  283. 

Groves  vs.  Slaughter,  ut  supra. 

New  York  vs.  Miln,  ut  supra. 


8  SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

III.  The  common  law  of  this  State  permits  the  existence 
of  slavery  in  no  case  within  its  limits. 

Cons.,  Art.  1,  No.  17. 

Sommersetts  Case,  20  How.  St.  Trials,  79. 

Knight  vs.  Wedderburn,  Id.  No.  2. 

Forbes  vs.  Cochrane,  2  B.  &  C.  448. 

Shanley  vs.  Harvey,  %  Eden,  126. 

The  Slave  Grace,  2  Hagg.  Adm.  118,  104. 

Story  Confl.  Laws,  No.  96. 

Co.  Litt.  124  b. 

IV.  The  statute  law  of  this  State  effects  a  universal  pro 
scription  and  prohibition  of  the  condition  of  slavery  within 
the  limits  of  the  State. 

1  R.  St.,  p.  656,  No.  1. — "No  person  held  as  a  slave  shall 
be  imported,  introduced  or  brought  into  this  State,  on  any 
pretence  whatever,  except  in  the  cases  hereinafter  specified. 
Every  such  person  shall  be  free.  Every  person  held  as  a 
slave,  who  hath  been  introduced  or  brought  in  this  State 
contrary  to  the  laws  in  force  at  the  time,  shall  be  free." 

No.  16. — "Every  person  born  within  this  State,  whether 
white  or  colored,  is  free;  every  person  who  shall  hereafter  be 
born  within  the  State,  shall  be  free;  and  every  person  brought 
into  this  State  as  a  slave,  except  as  authorized  by  this  title, 
shall  be  free." 

2  R.  St.,  p.  664,  No.  28. 

Laws  1857,  p.  797. 

Dred  Scott  vs.  Sanford,  19  How.  591-595. 

THIRD  POINT. — It  remains  only  to  be  considered  whether, 
under  the  principle  of  the  Law  of  Nations,  as  governing  the 
intercourse  of  friendly  States,  and  as  adopted  and  incor 
porated  into  the  administration  of  our  municipal  law,  comity 
requires  the  recognition  and  support  of  the  relation  of  slave 
owner  and  slave  between  strangers  passing  through  our 
territory,  notwithstanding  the  absolute  policy  and  compre- 


THE  LEMMON  SLAVE  CASE 

hensive  legislation  which  prohibit  that  relation  and  render 
the  civil  relation  of  slavery  impossible  in  our  own  society. 

The  comity,  it  is  to  be  observed,  under  inquiry,  is  (1)  of 
the  State  and  not  of  the  Court,  which  latter  has  no  authority 
to  exercise  comity  in  behalf  of  the  State,  but  only  a  judicial 
power  of  determining  whether  the  main  policy  and  actual 
legislation  of  the  State  exhibit  the  comity  inquired  of;  and 
(2)  whether  the  comity  extends  to  yielding  the  affirmative 
aid  of  the  State  to  maintain  the  mastery  of  the  slave-owner 
and  the  subjection  of  the  slave. 

Story  Confl.  Laws,  No.  38. 

Bk.  Augusta  vs.  Earle,  13  Pet.  589. 

Dred  Scott  vs.  Sanford,  19  How.  591. 

I.  The  principles,  policy,  sentiments,  public  reason  and 
conscience,  and  authoritative  will  of  the  State  sovereignty, 
as  such,  have  been  expressed  in  the  most  authentic  form,  and 
with  the  most  distinct  meaning,  that  slavery,  whencesoever 
it  comes,  and  by  whatsoever  casual  access,  or  for  whatsoever 
transient  stay,  SHALL  NOT  BE  TOLERATED  UPON  OUR  SOIL. 

That  the  particular  case  of  slavery  during  transit  has  not 
escaped  the  intent  or  effect  of  the  legislation  on  the  subject, 
appears  in  the  express  permission  once  accorded  to  it,  and 
the  subsequent  abrogation  of  such  permission. 

1  Rev.  St.,  Part  1,  ch.  XX,  Tit.  7,  Nos.  6,  7. 

Repealing  Act,  Laws  1841,  ch.  247. 

Upon  such  a  declaration  of  the  principles  and  sentiments 
of  the  State,  through  its  Legislature,  there  is  no  opportunity 
or  scope  for  judicial  doubt  or  determination. 

Story  Confl.  Laws,  Nos.  36,  37,  23,  24. 

Vattel,  p.  1,  Nos.  1,  2. 

II.  But,  were  such  manifest  enactment  of  the  sovereign 
will  in  the  premises  wanting,  as  matter  of  general  reason  and 
universal  authority,  the  status  of  slavery  is  never  upheld  in 
the  case  of  strangers,  resident  or  in  transit,  when  the  domestic 


10  SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

laws  reject  and  suppress  such  status  as  a  civil  condition  or 
social  relation. 

(A)  The  same  reasons  of  justice  and  policy  which  forbid 
the  sanction  of  law  and  the  aid  of  public  force  to  the  pro 
scribed  status  among  our  own  population,  forbid  them  in  the 
case  of  strangers  within  our  territory. 

(B)  The  status  of  slavery  is  not  a  natural  relation,  but  is 
contrary  to  nature,   and  at  every  moment  it  subsists,  it 
is  an  ever  new  and  active  violation  of  the  law  of  nature. 
Of  this  no  more  explicit  or  unequivocal  statement  can  be 
framed  than  is  to  be  found  in  the  Constitution  of  the  State 
of  Virginia.     Thus,  the  first  article  of  the  Bill  of  Rights  of 
that  Constitution  declares: 

"That  all  men  are  by  nature  equally  free  and  independent, 
and  have  certain  inherent  rights,  of  which,  when  they  enter 
into  a  state  of  society,  they  cannot  by  any  compact  deprive 
or  divest  their  posterity;  namely,  the  enjoyment  of  life  and 
liberty,  with  the  means  of  acquiring  and  possessing  property, 
and  pursuing  and  obtaining  happiness  and  safety." 

It  originates  in  mere  predominance  of  physical  force,  and 
is  continued  by  mere  predominance  of  social  force  or  mu 
nicipal  law.  Whenever  and  wherever  the  physical  force  in 
the  one  stage,  or  the  social  force  or  municipal  law  in  the 
other  stage,  fails,  the  status  falls,  for  it  has  nothing  to  rest 
upon. 

To  continue  and  defend  the  status,  then,  within  our  terri 
tory,  the  stranger  must  appeal  to  some  municipal  law.  He 
has  brought  with  him  no  system  of  municipal  law  to  be  a 
weapon  and  a  shield  to  this  status;  he  finds  no  such  system 
here.  His  appeal  to  force  against  nature,  to  law  against 
justice,  is  vain,  and  his  captive  is  free. 

(C)  The  Law  of  Nations,  built  upon  the  law  of  nature, 
has  adopted  this  same  view  of  the  status  of  slavery,  as  resting 
on  force  against  right,  and  finding  no  support  outside  of  the 
jurisdiction  of  the  municipal  law  which  establishes  it. 


THE  LEMMON  SLAVE  CASE  11 

(D)  A  State  proscribing  the  status  of  slavery  in  its  domes 
tic  system,  has  no  apparatus,  either  of  law  or  of  force,  to 
maintain  the  relation  between  strangers.  It  has  no  code 
of  the  slave-owner's  rights  or  of  the  slave's  submission,  no 
processes  for  the  enforcement  of  either,  no  rules  of  evidence 
or  adjudication  in  the  premises,  no  guard-houses,  prisons,  or 
whipping-posts  to  uphold  the  slave-owner's  power  and  crush 
the  slave's  resistance.  But  a  comity  which  should  recognize 
a  status  that  can  subsist  only  by  force,  and  yet  refuse  the 
force  to  sustain  it,  is  illusory.  If  we  recognize  the  fragment 
of  slavery  imported  by  the  stranger,  we  must  adopt  the 
fabric  of  which  it  is  a  fragment  and  from  which  it  derives 
its  vitality. 

If  the  slave  be  eloigned  by  fraud  or  force,  the  owner  must 
have  replevin  for  him  or  trover  for  his  value. 

If  a  creditor  obtain  a  foreign  attachment  against  the 
slave-owner,  the  sheriff  must  seize  and  sell  the  slaves. 

If  the  owner  die,  the  surrogate  must  administer  the  slave 
as  assets. 

If  the  slave  give  birth  to  offspring,  we  have  a  native-born 
slave. 

If  the  owner,  enforcing  obedience  to  his  caprices,  maim  or 
slay  his  slave,  we  must  admit  the  status  as  a  plea  in  bar  to 
the  public  justice. 

If  the  slave  be  tried  for  crime,  upon  his  owner's  complaint, 
the  testimony  of  his  fellow-slaves  must  be  excluded. 

If  the  slave  be  imprisoned  or  executed  for  crime,  the  value 
taken  by  the  State  must  be  made  good  to  the  owner,  as  for 
"private  property  taken  for  public  use." 

Everything  or  nothing,  is  the  demand  from  our  comity; 
everything  or  nothing,  must  be  our  answer. 

(E)  The  rule  of  the  Law  of  Nations  which  permits  the 
transit  of  strangers  and  their  property  through  a  friendly 
State  does  not  require  our  laws  to  uphold  the  relation  of 
slave-owner  and  slave  between  strangers. 


1£          SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

By  the  Law  of  Nations,  men  are  not  the  subject  of  prop 
erty. 

By  the  Law  of  Nations,  the  municipal  law  which  makes 
men  the  subject  of  property,  is  limited  with  the  power  to 
enforce  itself,  that  is  by  its  territorial  jurisdiction. 

By  the  Law  of  Nations,  then,  the  strangers  stand  upon 
our  soil  in  their  natural  relations  as  men,  their  artificial 
relation  being  absolutely  terminated. 

The  Antelope,  10  Wheat.  120,  121,  and  cases  ut  supra. 

(F)  The  principle  of  the  law  of  nations  which  attributes  to 
the  law  of  the  domicil  the  power  to  fix  the  civil  status  of 
persons,  does  not  require  our  laws  to  uphold,  within  our  own 
territory,   the  relation   of  slave-owner  and   slave  between 
strangers. 

The  principle  only  requires  us  (1)  to  recognize  the  con 
sequences  in  reference  to  subjects  within  our  own  jurisdic 
tion  (so  far  as  may  be  done  without  prejudice  to  domestic 
interests),  of  the  status  existing  abroad;  and  (2)  where  the 
status  itself  is  brought  within  our  limits  and  is  here  permis 
sible  as  a  domestic  status,  to  recognize  the  foreign  law  as  an 
authentic  origin  and  support  of  the  actual  status. 

It  is  thus  that  marriage  contracted  in  a  foreign  domicil, 
according  to  the  municipal  law  there,  will  be  maintained  as 
a  continuing  marriage  here,  with  such  traits  as  belong  to  that 
relation  here;  yet,  incestuous  marriage  or  polygamy,  lawful 
in  the  foreign  domicil,  cannot  be  held  as  a  lawful  continuing 
relation  here. 

Story  Conn.  Laws,  Nos.  51,  51,  a.,  89,  113,  114,  96,  104, 
620,  624. 

(G)  This  free  and  sovereign  State,  in  determining  to  which 
of  two  eternal  laws  it  will  by  comity  add  the  vigor  of  its 
adoption  and  administration  within  its  territory,  viz.,  a 
foreign  municipal  law  of  force  against  right,  or  the  law  of 
nations,  conformed  to  its  own  domestic  policy,  under  the 


THE  LEMMON  SLAVE  CASE  13 

same  impulse  which  has  purged  its  own  system  of  the  odious 
and  violent  injustice  of  slavery,  will  prefer  the  Law  of  Na 
tions  to  the  law  of  Virginia,  and  set  the  slave  free. 

Impius  et  crudelis  judicandus  est,  qui  libertati  non  favet. 
Nostrajura  IN  OMNI  CASU  libertati  dantfavorem. 
Co.  Litt.  ut  supra. 

ARGUMENT 

//  the  Court  please:  The  question  brought  originally  under 
judicial  examination  and  for  practical  determination  was 
an  interesting  and  important  one,  as  it  respected  the  liberty 
of  the  persons  whose  fate  was  to  be  determined,  under  our  law, 
by  our  jurisprudence,  and  by  the  judgment  of  our  Courts. 
Their  number  was  considerable;  and  ever  in  enlightened 
communities,  there  is  no  question  so  important  as  that  which 
touches  the  liberty  of  man — in  a  free  country,  important 
that  the  full  measure  of  that  liberty  shall  not  be  unjustly 
and  unlawfully  circumscribed,  and  in  a  despotic  country, 
or  in  a  country  where  slavery  exists,  important  that  the 
poor  remnant  of  that  liberty  may  not  be  still  more  abridged. 
Therefore,  that  imprisonment  should  continue  an  hour 
longer  than  it  ought  by  law,  or  that  there  should  be  con 
straint  of  limb  or  voice  that  the  law  does  not  allow,  is  ever  a 
consideration  that  should  call  off  courts  of  justice  from  the 
ordinary  deliberations  on  matters  of  property,  however 
great,  until  this  question  be  determined,  and  this  great 
wrong,  if  it  be  one,  be  redressed.  But  when  the  question  of 
liberty  is  presented  in  the  persons  not  only  of  so  many,  and 
not  only  for  their  lives,  but  for  the  whole  stream  of  their 
posterity  forever,  I  apprehend  that  no  court  of  justice 
(though  limiting  the  gravity  of  this  question  to  that  of  the 
fate  of  these  eight  persons  and  their  posterity),  ever  had 
occasion  to  consider  a  graver  question  of  human  liberty,  or 
ever  to  be  more  careful  that  they  should  not,  by  an  erring 
judgment,  determine  the  doom  of  these  people  forever. 


14  SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

The  question  is  here,  and  it  is  not  to  be  evaded.  Whatever 
is  done  concerning  the  future  of  these  persons,  is  done  by  the 
law  of  New  York,  imposed  by  her  own  State  authority,  or 
by  the  law  of  New  York,  resting  upon  and  imposed  by  the 
paramount  authority  of  the  Federal  Government.  What 
ever  of  doubt,  of  difficulty  there  may  be,  whatever  of  obscur 
ity  or  uncertainty  there  may  be,  on  this  question,  the  deter 
mination  of  this  Court,  as  that  of  last  resort  in  this  State, 
finally  impresses  the  right,  the  sanction,  the  force,  that  are 
necessary,  and  thus  establishes,  continues,  or  permits  the 
slavery  of  these  men  and  women. 

Now,  beyond  controversy,  as  it  is  the  duty  of  an  advocate, 
so  much  more  is  it  the  duty  of  a  Court,  when  a  legal  question, 
within  legal  limits  is  to  be  disposed  of,  to  meet  that  question 
and  determine  it,  as  a  juridical  inquiry;  and  when  the  respon 
sibilities  of  the  judge  and  of  the  advocate  are  discharged,  if 
the  law  drives  into  slavery  these  unfortunate  appellants  to 
your  judgment,  then,  as  servants  of  the  law,  you  are  ac 
quitted.  The  ministers  of  justice  do  not  always  perform  an 
agreeable  duty.  But,  every  consideration  drawn  from 
general  jurisprudence,  drawn  from  the  nature  of  man,  drawn 
from  the  immutable  qualities  of  right  and  wrong,  may  be 
rightfully  invoked  in  such  an  inquiry.  Unless  we  live  under 
a  government  that  has  renounced  all  these  principles,  that, 
on  inducements  of  policy,  of  interest,  or  of  whatever  perverse 
influence  has  guided  the  public  councils,  stands  upon  a 
denial  of  natural  right,  upon  the  overthrow  of  general  jus 
tice,  and  has  established  the  public  policy  of  injustice  and 
oppression;  unless  the  Court  sits  under  a  government  that 
has  avowed  and  maintained,  and  calls  upon  it  to  avow  and 
maintain  such  a  desertion  of  common  right  and  natural 
justice,  then,  all  arguments,  and  all  illustrations  that  bring 
the  judgment  of  a  free  Court  of  a  free  people  to  determine 
what  their  law  is,  and  how  it  should  be  administered,  are,  in 
this  inquiry,  pertinent  and  appropriate. 


THE  LEMMON  SLAVE  CASE  15 

But,  if  the  Court  please,  the  magnitude  of  this  question 
is  not  limited  to  its  pressure  upon  the  liberty  of  the  particu 
lar  persons  whose  case  is  before  the  Court.  As  a  part  (and 
a  part  not  to  be  evaded)  of  the  consideration  and  determina 
tion,  both  in  the  legislative  councils  and  in  the  courts  of 
judicature,  of  the  nation,  and  of  the  separate  States,  of  the 
question  that  grows  out  of  the  existence  in  this  country,  in 
slavery,  of  negroes  and  their  descendants,  the  present  in 
quiry  attracts  great  public  attention. 

Beyond  the  status  of  domestic  slavery,  as  a  local  institution 
— established,  administered,  construed  and  defended  in  and 
by  the  States,  which,  under  our  Federal  system  maintain  it 
— three  forms  of  question  will  obtrude  themselves  on  public 
attention,  and  cannot  be  avoided.  The  one  is — What  is 
the  power  and  authority  of  the  Governments  of  the  States 
that  continue  and  maintain  the  institution  of  slavery,  in 
respect  of  the  free  citizens  or  free  inhabitants  of  this  country, 
to  protect  by  their  exclusion,  or  by  their  control  while 
within  these  communities,  this  institution  of  slavery,  against 
violent,  against  legal,  against  moral,  against  religious,  against 
social  influences,  that  may  disintegrate  and  destroy  it? 
This  right,  asserted  to  the  extent  of  absolute  control,  upon 
the  necessity  of  self-preservation,  has  never  been  permitted 
to  be  the  subject  of  calm,  judicial  inquiry  within  the  States 
that  support  slavery.  Whether  free  black  citizens,  or  free 
black  inhabitants  (if  they  be  not  citizens),  of  the  free  States 
of  the  Union,  shall  be  permitted  in  their  pursuits  of  naviga 
tion  or  otherwise,  to  come  within  the  territory  of  a  slave- 
holding  State;  whether  white  mechanics,  merchants,  land 
owners,  whether  teachers  and  preachers,  free  citizens  of  the 
United  States,  shall  be  permitted  within  the  slaveholding 
States  to  establish  their  residence  permanently  or  tempo 
rarily,  and  pursue  their  vocations;  or  whether  the  institution 
of  slavery,  of  domestic  authority,  shall  have  the  power  to 
subjugate  the  free  people  of  the  country,  morally,  socially, 


16  SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

and  politically,  in  order  that  the  slaves  may  be  held  in 
personal  bondage — these  are  questions  that  are  exhibiting 
themselves  in  a  form  the  most  significant  and  important  in 
various  parts  of  this  country.  It  has  never  yet  been  per 
mitted  in  the  slaveholding  States,  that  judicial  inquiry 
should  be  instituted  and  prosecuted,  to  the  result  of  a  legal 
determination  of  these  questions. 

Another  most  important,  and  in  the  public  mind  most 
absorbing,  political  topic,  touches  the  footing  of  this  domestic 
institution  of  slavery  in,  and  in  respect  to,  the  territories  of  the 
United  States,  that  are  protected  by  no  government  or  laws 
except  those  of  the  Federal  Union.  This  question,  agitated 
in  the  public  councils,  agitated  in  the  popular  mind,  and 
discussed  to  a  certain  extent  in  the  Supreme  Court  of  the 
United  States,  is  one,  opinions  and  determinations  upon 
which  are  supposed  to  have  an  important  bearing  upon  the 
third  and  last  remaining  inquiry  connected  with  the  general 
subject.  And  that  is,  what  is  the  legal  position  of  the  domes 
tic  institution  of  slavery,  as  existing  in  the  slave  States,  in 
regard  to  slaves  and  their  owners,  when  brought  within  the 
free  States,  that  are  governed  by  their  own  constitutions 
and  laws,  expounded  and  administered  by  their  own  courts? 
That  is  the  question  now  before  your  honors;  and  that 
question  concerns  what  is  of  more  vital  importance  to  a  po 
litical  community  than  anything  else,  its  sovereignty.  It 
touches  not  only  this  question  of  sovereignty,  vital  to  the 
existence  of  an  independent  community,  but  sovereignty  in 
its  most  central  point — that  of  the  control  of  the  civil  and 
social  condition  of  persons  within  its  borders.  For  it  may 
be  very  well  understood  that  if  a  sovereign  State  has  not  the 
power  of  determining  the  political,  the  civil,  the  social,  the 
actual  condition  of  persons  within  its  borders,  it  is  because 
some  other  power  has  that  control;  and  how  it  can  be  ad 
mitted  that  a  foreign  government,  a  foreign  jurisprudence,  a 
foreign  social  condition,  can  intrude  itself  into  an  independ- 


THE  LEMMON  SLAVE  CASE  17 

ent  State,  and  establish  for  all  time,  or  for  any  time,  for 
some  persons,  or  for  one  person,  that  condition  within  the 
State  into  which  the  intrusion  is  made;  how  this  admis 
sion  can  consist  with  the  fundamental  idea  of  the  sover 
eignty,  or  of  the  separateness  of  a  political  community,  it 
passes  my  intelligence  to  comprehend. 

But,  upon  the  view  of  the  learned  counsel  who  sustains 
the  pretensions  of  the  State  of  Virginia,  that  State  either  by 
its  own  authority,  or  by  the  aid  of  the  Government  of  the 
United  States,  has  something  to  say  concerning  the  legal 
condition  of  persons  within  this  State.  The  pretension  that 
by  the  paramount  dominion  of  the  Federal  Constitution 
we  are  bound  to  admit  within  our  borders  the  institution  of 
slavery,  is  a  claim  which,  in  my  judgment,  permits  of  no 
limitation  whatever,  of  time  or  of  circumstance.  It  pre 
sents,  therefore,  a  question  of  the  first  importance.  If  it 
were  presented  to  you  as  merely  a  question  of  comity,  to 
which  you  were  obliged  by  your  sense  of  what  is  fitting  and 
possible,  under  the  recognized  will  and  authority  of  our 
own  Legislature,  why,  although  the  public  mind  might  be 
awakened,  the  proposition  would  not  be  so  alarming  as,  that 
we  are  controlled  in  this  matter,  not  by  any  judgment  of  our 
own  as  to  what  is  proper,  or  fitting,  or  hospitable,  but  are 
bound  by  a  superior  authority,  and  to  results  to  which  we 
can  put  no  limits. 

Now,  if  the  Court  please,  it  will  be  found  that  the  very 
general  view,  which  has  been  suggested  by  the  counsel  for 
the  appellants  here,  of  their  claim  respecting  obligations 
and  duties  on  our  own  part,  serves  no  good  purpose  what 
ever,  but  tends  to  withdraw  the  attention  of  the  Court  from 
the  real  subject  of  judicial  inquiry.  What  is  the  subject  of 
the  present  judicial  inquiry,  and  how  does  it  arise? 

Within  this  State,  and  within  the  limits  of  the  City  of 
New  York,  were  found  eight  men  and  women  of  color;  and 
it  was  alleged,  in  such  authentic  form  as  our  statutes  require, 


18  SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

to  our  accredited  judicial  officer,  that  these  eight  persons 
were  restrained  of  their  liberty.  What  of  that?  What  is 
it  that  institutes  such  an  inquiry,  and  what  is  the  point  to 
be  disposed  of  when  such  an  inquiry  is  raised?  The  inquiry 
is  instituted  under  our  statute  of  Habeas  Corpus,  one  of  the 
main  guards  and  protections  of  our  liberty.  For  the 
words  "liberty"  and  "slavery" — which  we  may  get  so  used 
to  as  to  think  there  is  not  much  difference  between  them, 
except  that  they  suggest  matters  of  jurisprudential  con 
sideration  as  to  the  limits  and  extent  of  the  one  and  the 
other — liberty  and  slavery,  as  civil  conditions,  are  practically 
nothing  more  nor  less  than  the  establishment  of  laws,  and 
the  methods  provided  for  their  enforcement,  to  define  and 
protect  the  one  institution  and  the  other.  And,  when  you 
look  for  the  liberty  that  the  people  of  New  York  enjoy,  you 
find  it  in  their  laws  and  in  their  system  of  government.  You 
find  their  political  liberty  in  the  share  that  they  have  in  the 
election  and  change  of  all  persons  that  form  and  administer 
their  government.  You  find  their  civil  liberty,  as  matter  of 
private  and  personal  right,  in  the  guaranties  of  the  Constitu 
tion,  in  the  methods  of  the  public  administration  of  justice, 
in  the  trial  by  jury,  in  the  Habeas  Corpus;  and  you  may  have 
all  the  fanciful  notions  of  exemption  from  bodily  restraint 
in  the  world,  yet  if  you  do  not  have  the  Habeas  Corpus  act  or 
some  equivalent  mode  of  attracting  the  public  eye  and  con 
science  in  administering  the  law,  to  the  condition  of  people 
who  are  restrained  of  their  liberty,  you  have  no  personal 
liberty,  for  you  have  no  efficient  mode  of  vindicating  and 
defending  it. 

What  does  our  Habeas  Corpus  act  require,  first,  in  respect 
to  the  institution  of  the  investigation,  when  it  shall  be  al 
leged  to  a  judicial  officer  that  any  person  within  the  State  is 
restrained  of  his  liberty?  Why,  it  creates  an  absolute  legal 
necessity  that  the  question  of  fact  and  of  right  should  at  once 
be  withdrawn  from  the  personal  or  forcible  control  which 


THE  LEMMON  SLAVE  CASE  19 

exists,  and  be  transferred  instantly  and  completely  to  the 
actual  and  legal  control  of  the  State.  That  is  the  Habeas 
Corpus  act,  that  the  question  of  the  restraint  of  a  human 
being  in  this  State,  upon  any  allegation  that  it  exists  in 
fact,  should  be  at  once  rescued  from  the  determination  of 
force  and  personal  control,  and  made  a  question  of  the  State's 
maintaining  the  restraint.  From  that  time,  in  the  theory 
of  the  law,  the  restraint,  in  fact,  cannot  continue  a  moment, 
but  by  its  maintenance  by  the  law  of  the  State,  enforced  and 
supported  by  the  power  of  the  State. 

So  essential,  in  a  free  State,  is  this  practical  form  of  sus 
taining  personal  liberty,  that  it  is  protected  in  a  way  and 
with  a  vigor  that  no  other  right  whatever  is  protected,  or, 
consistently  with  some  other  general  and  necessary  principles 
is  supposed  to  be  possibly  capable  of  protection.  The  right 
to  the  writ  of  Habeas  Corpus  is  protected  against  invasion 
from  the  legislative  power  of  the  State,  under  the  Constitu 
tion;  a  protection  which  it  shares  with  various  other  private 
rights.  But  this  writ  as  a  matter  of  judicial  administration, 
is  put  upon  a  footing  on  which  the  exercise  of  no  other 
judicial  procedure  whatever  is  put — that  is,  upon  an  absolute 
legal  necessity  that,  upon  suggestion,  the  writ  shall  issue. 
The  judge  to  whom  application  is  made  has  no  discretion 
to  withhold  the  writ;  if  he  refuses  it,  he  exposes  himself  to 
fine,  as  well  as  to  all  the  consequences  of  dereliction  of  ab 
solute  official  duty. 

Why  is  this?  It  is  to  secure,  as  matter  of  necessary  practical 
result,  that,  whatever  the  future  progress  of  the  inquiry  and 
its  final  determination  shall  be,  the  condition  of  personal  and 
forcible  restraint  shall  not  continue  one  moment,  but  that, 
on  the  fundamental  basis  of  this  universal  principle  of  free 
governments — that  whatever  is  rightly  done,  is  rightly  done 
by  law — the  transfer  shall  immediately,  completely  and 
irresistibly  be  made  from  the  private  force  that  accompanied 
the  actual  restraint,  into  the  region  of  law  and  judicial 


20  SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

determination,  and  from  that  moment,  either  the  restraint 
ceases  or  the  law  continues  it  and  compels  it. 

(The  Court  took  a  recess.) 

I  have  said,  if  the  Court  please,  that  the  policy  of  our  law 
in  support  of  personal  liberty,  had  seen  fit  to  devise  a  proc 
ess  whereby  any  actual  restraint  upon  a  person  within  this 
State  shall  be  immediately  changed,  in  fact,  from  the  re 
straint  by  private  force  into  the  restraint  of  the  law,  and  by 
the  public  force;  that  thereafter  the  law  restrained,  and,  by 
its  authority  alone,  was  any  continued  deprivation  of  liberty 
possible.  I  have  said  that  this  process  was  the  important 
practical  and  effectual  support  of  liberty  without  which  lib 
erty  might  remain  as  a  name,  and  despotism  exist  as  a 
system. 

Am  I  wrong  in  claiming  this  efficient  agency  for  the  writ 
of  Habeas  Corpus,  and  in  attributing  to  it  when  issued,  the 
consequences  I  have  suggested?  The  personal  liberty  of  the 
people  of  this  State  might  doubtless  have  been  left,  in  the 
first  instance,  to  their  own  protection,  or  for  them  to  find, 
by  ordinary  remedies,  redress  for  its  infraction.  Thus  it 
might  have  been  left  to  a  person  held  in  bondage  or  under 
restraint  in  this  State,  to  relieve  himself  by  force  if  he  could, 
and  then  in  an  action  to  recover  damages  for  false  imprison 
ment.  This  would  be  so  if  the  Habeas  Corpus  act  were  not 
in  force,  and  this  contest  of  private  force  would  be  deter 
mined  by  superior  strength  as  to  who  should  obtain  the 
victory. 

The  distinctive  trait  of  the  Habeas  Corpus  act  is  that  it 
will  not  tolerate  this  "let  alone9'  policy — that  it  will  not 
permit  the  will  or  the  power  of  prince  or  magistrate,  or  pub 
lic  officer,  or  private  person  to  have  sway,  but  always  and 
only  the  power  of  the  law — that  it  will  take  an  active  part  in 
the  protection  and  defence  of  liberty,  and  that  the  existence 


THE  LEMMON  SLAVE  CASE  £1 

of  the  fact  of  restraint  shall  be  the  only  prerequisite  to  re 
move  the  question  from  this  region  of  force  and  submission 
into  the  public  jurisdiction  of  the  law. 

If  this  be  so,  and  no  one  can  deny  that  it  is  so,  from  the 
moment  the  writ  of  Habeas  Corpus  was  issued  in  this  case, 
if  these  eight  persons  are  held  in  this  State  for  any  period, 
brief  or  permanent,  in  slavery,  or  if  they  are  sent  away  from 
this  State  into  slavery,  it  is  done  by  the  law  of  the  State  of 
New  York,  and  by  it  alone.  For  the  private  dominion  of 
Jonathan  and  Juliet  Lemmon  over  these  persons  has  been 
removed  by  the  writ  of  Habeas  Corpus,  and  they  stand  in 
this  court  for  its  judgment  and  control,  as  the  law  shall 
award.  The  process  once  set  in  motion,  there  is  no  escape 
from  its  regular  procedure  and  its  final  result,  and  the 
statute  permits  no  answer  that  shall  continue  the  restraint, 
unless  it  shall  disclose  some  cause  in  law  sufficient. 

Now,  what  is  answered  to  the  exigency  of  this  writ?  The 
petition  for  the  writ  alleges  that  these  persons  "were,  and 
each  of  them  was,  yesterday  confined  and  restrained  of  their 
liberty  on  board  the  steamer,  Richmond  City,  or  City  of 
Richmond,  so  called,  in  the  harbor  of  New  York,  and  taken 
therefrom  last  night,  and  are  now  confined  in  house  No.  5 
Carlisle  street  in  New  York,  and  that  they  are  not  committed 
or  detained  by  virtue  of  any  process  issued  by  any  court 
of  the  United  States,  or  by  any  judge  thereof,  nor  are  they 
committed  or  detained  by  virtue  of  the  final  judgment  or 
decree  of  any  competent  tribunal  of  civil  or  criminal  juris 
diction,  or  by  virtue  of  any  execution  issued  upon  such  judg 
ment  or  decree."  The  supposed  cause  of  restraint  is  then 
set  forth  by  the  petitioner,  but  as  the  return  states  it,  we 
need  not  consider  the  charges  of  the  petition  in  this  behalf. 
The  answer  gives  as  legal  reason  for  holding  them  in  the  re 
straint  thus  admitted  to  exist,  that  in  the  State  of  Virginia, 
the  respondents,  Jonathan  and  Juliet  Lemmon,  being  there 
residents  and  citizens,  these  eight  persons  were  their  slaves; 


m          SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

that  they,  planning  an  emigration  from  Virginia  to  Texas, 
where  the  institution  of  slavery,  equivalent  to  that  under  the 
laws  of  Virginia,  existed,  took  passage  in  a  steamer  to  the 
city  of  New  York  and  there  landed,  awaiting  the  commence 
ment  of  a  new  voyage,  that  should  carry  them  to  Texas; 
that  their  residence  or  being  in  the  State  of  New  York  was  as 
part  of  that  transit,  and  with  no  other  plan  or  design  in  re 
gard  to  their  remaining  except  to  complete  that  proposed 
voyage  from  New  York  to  Texas.  And  they  claim  that  the 
restraint  exercised  is  justified  under  the  laws  of  New  York, 
by  reason  of  the  facts  they  have  stated.  That  is  the  case, 
and  that  being  the  case,  it  is  for  the  court  to  determine 
whether  by  the  laws  of  New  York,  that  is  legal  cause  of  re 
straint;  and  if  it  be,  to  give  the  whole  power  of  the  law  and  of 
the  State  of  New  York  to  maintain  that  restraint.  The 
statute  provides  that  upon  the  return  made  to  the  writ 
"the  court  or  officer  before  whom  the  party  shall  be  brought 
on  such  writ  of  Habeas  Corpus,  shall  immediately  after  the 
return  thereof,  proceed  to  examine  into  the  facts  contained 
in  such  return,  and  into  the  cause  of  the  confinement  or  re 
straint  of  such  party.  If  no  legal  cause  be  shown  for  such  im 
prisonment  or  restraint,  or  for  the  continuation  thereof, 
such  court  or  officer  shall  discharge  such  party  from  the 
custody  or  restraint  under  which  he  is  held." 

The  necessary  result  of  this  procedure,  introduced  by  the 
writ  of  Habeas  Corpus,  is  thus  shown  to  be  the  discharge  of 
these  persons  from  the  control  under  which  they  are  found, 
unless  some  legal  cause  shall  have,  by  the  return,  been  shown 
for  the  continuance  of  the  restraint  complained  of.  The 
only  question,  then,  was,  and  is,  whether  the  relation  of 
slavery  (as  described  in  terms  in  the  return),  existing  in 
Virginia,  and  existing  conformably  to  the  laws  of  Virginia, 
is  a  cause  for  the  restraint  by  our  law,  of  these  persons  under 
the  dominion  of  their  owners  as  slaves  in  New  York,  during 
a  brief  or  other  stay,  under  the  circumstances  detailed  in  the 


THE  LEMMON  SLAVE  CASE  23 

return,  and  so  as  to  compel  the  authority  of  our  State  to  be 
actively  exerted  to  maintain  and  continue  such  restraint  of 
liberty. 

We  are  first,  then,  brought  to  the  inquiry  of  what  a  legal 
cause  of  restraint  is.  It  is,  I  take  it,  an  identical  proposition 
to  say,  that  legal  cause  of  restraint  can  be  none  other  than 
an  authority  to  maintain  the  restraint  which  has  the  force 
of  law  within  this  State.  From  whatever  source  this 
authority  of  law  is  derived — whether  it  be  directly  from 
the  State  legislation,  or  is  found  in  the  unwritten  common 
(or  customary)  law  of  the  State  itself,  or  whether  it  be  from 
the  Federal  Government,  whose  Constitution  and  statutes 
have  as  perfect  authority  within  this  State,  as  laws  origin 
ating  by  State  enactment,  or  by  the  adoption  for  the  time 
being  under  the  principles  of  comity,  or  for  whatever  reason, 
of  a  foreign  system  of  law  (as  a  fragment  and  casually,  if  you 
please),  it  must  have  the  compulsory  force  of  law  in  this 
State  or  it  is  no  answer  to  the  writ.  Under  this  last  head  of 
authority  the  inquiry  is,  whether  our  law,  finding  such  re 
straint  maintained  or  permitted  by  other  communities  with 
which  we  have  intercourse,  chooses  to  say  that,  under  certain 
circumstances  and  limited  conditions,  it  will  interpose  and 
continue  that  restraint  on  persons  passing  through  our 
territory.  Your  Honors  will  see,  that  though  you  may  as 
cribe  to  these  three  sources  of  authority,  the  means  or 
grounds  for  the  restraint  under  consideration,  yet  after  all, 
they  are  but  two;  the  authentic  and  original  law  of  our 
State,  and  the  authentic  and  original  law  of  the  Federal 
Government.  For  the  legal  policy  that  may  make  possible 
and  exceptional,  in  favor  of  strangers,  a  condition  of  things 
that  we  do  not  permit  to  our  own  citizens  or  tolerate  in  our 
own  population,  though  called  by  the  name  of  comity,  must 
after  all,  be  a  part  of  the  jurisprudence  either  of  the  Federal 
Government  in  force  within  this  State,  or  of  the  State  Gov 
ernment,  administered  by  our  Courts. 


24  SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

Having  thus,  as  I  think,  rightly  put  before  the  Court  the 
real  point  for  its  consideration,  and  assigned  the  true  limits 
from  which  the  rules  for  its  adjudication  must  be  furnished, 
let  us  look  for  a  moment  at  the  position  taken  by  our  op 
ponents.  As  I  understand  the  learned  counsel  who  supports 
the  pretensions  of  the  State  of  Virginia,  and  maintains  the 
case  of  the  appellants  here,  the  form  and  substance  of  his 
argument  may  be  briefly  divided  thus:  The  first  point,  on 
which  he  insists,  which  includes  mere  general  topics,  ex 
panded  through  the  first  seventeen  pages  of  his  brief,  is 
designed  as  an  argument  to  propitiate  the  Court  to  a  favorable 
consideration,  or  at  least  to  an  impartial  estimate  of  this 
stranger,  slavery ;  to  show  that  it  is  not  as  bad  as  it  has  been 
painted,  and  that  some  of  the  men  who  have  given  it  an  ill 
name,  have  themselves  had  complacency  and  toleration  for 
other  social  faults  and  defects,  in  the  communities  in  which 
they  lived,  that  were  quite  as  bad.  Its  purpose  is  to  put 
this  Court  in  a  disposition  to  find  no  repugnance  to  this  in 
stitution  of  slavery,  in  their  own  breasts,  in  the  public  con 
science,  or  in  the  sentiment  or  in  the  action  of  this  State,  as 
evinced  by  any  legislation,  any  principles  of  its  common 
law,  any  judicial  determinations,  except  as  they  may  find 
written  in  the  statutes,  some  imperative  prohibition  of 
slavery.  He  would  bring  you  to  think  that  if  this  were  an 
open  question  (and  he  will  contend  that  it  has  been  left  an 
open  question,  so  far  as  any  statute  of  the  State  is  con 
cerned) — there  are  many  reasons  of  conscience,  of  justice, 
of  benevolence  and  of  duty,  which  require  the  maintenance 
and  continuance  of  the  institution  of  slavery,  and  require 
every  man,  whose  hands  are  untied,  to  give  it  a  helping  and 
supporting  hand;  that  you  must  find  yourselves  subdued  by 
some  hard  system  of  positive  law,  that  prohibits  you  from 
being  hospitable  to  this  social  and  civil  institution  of  slavery, 
to  justify  this  Court  in  frowning  upon  it.  In  some  future 
stage  of  my  argument  I  shall  have,  more  completely  and 


THE  LEMMON  SLAVE  CASE  25 

distinctly  perhaps,  to  direct  the  attention  of  the  Court  to 
some  of  the  many  positions  and  illustrations  which  are  em 
bodied  in  this  forensic  plea  for  slavery.  But  let  me  say 
now,  that  if  this  Court  and  our  people  cannot  be  brought  to 
look  kindly  upon  its  fragmentary  and  temporary  existence 
in  our  midst,  but  by  trampling  down,  step  by  step,  all  the 
great  barriers  against  oppression  that  have  been  raised 
by  the  reason,  the  justice  and  wisdom  of  age  after  age — but 
by  undermining  the  principles  that  have  built  up  a  great, 
free  and  powerful  nation,  to  be  the  habitation  of  liberty 
and  justice  for  the  great  population  of  to-day,  and  for 
generation  after  generation  yet  to  come;  if  the  rights, 
poor,  feeble,  casual,  of  the  black  man,  cannot  be  overborne 
or  overthrown  without  tearing  in  pieces  the  law  of  nations — 
confounding  all  distinctions  between  civilization  and  bar 
barism — subduing  right  by  might,  and  thinking  that  force 
and  power  can,  any  day  it  chooses,  call  evil,  good,  and  good, 
evil,  and  that  a  few  soft  phrases  and  intricate  sentences  can 
obscure,  even  for  an  hour,  the  difference  between  right  and 
wrong,  and  the  fundamental  distinction  between  a  rule  of 
force  and  a  rule  of  right:  then  this  class  of  the  community, 
while  here  in  the  State  of  New  York,  is  abundantly  safe; 
for  an  adoption  of  the  maxims  and  the  principles  that  are 
necessarily  claimed  in  this  deliberate  argument,  that  force 
is  right,  and  power  is  law,  can  only  be  expected  by  reversing 
the  whole  tide  of  civilization,  and  by  bringing  into  discus 
sion,  in  courts  of  justice,  that  rest  upon  nothing  but  the 
supremacy  of  reason  for  their  authority,  propositions  that 
make  foolish  the  existence  of  tribunals  of  justice,  when  con 
tests  of  force  alone  are  important  or  interesting  to  man  and 
to  society. 

The  next  proposition  of  the  counsel  for  the  appellants  is 
that,  up  to  the  time  of  this  judicial  inquiry  in  the  Court  be 
low,  there  was  no  legislative  act  of  our  State  that,  by  its 
effect  or  in  its  terms,  operated  to  prevent  our  Courts  from 


26  SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

withholding  a  judgment  of  liberty,  on  a  writ  of  Habeas 
Corpus,  from  slaves  brought  hither  from  another  State  of 
the  Union;  and  further,  that  if  the  statutes  of  the  State, 
rightly  construed,  should  be  held  to  have  that  force  and  effect, 
under  the  Constitution  of  the  United  States,  such  statutes 
are  invalid,  and  no  judgment  that  was  based  upon  such  a 
construction  of  the  law  of  this  State,  could  be  sustained. 
And  this  prohibitory  control  of  the  Constitution  of  the 
United  States,  over  this  subject,  is  based  upon  the  commer 
cial  powers  of  the  Federal  Government  to  regulate  that  kind 
of  intercourse  between  the  States  of  the  Union,  and  upon  the 
provision  or  guaranty  of  the  Constitution  to  the  citizens  of 
each  State,  that  they  shall  be  entitled  to  all  the  privileges 
of  citizens  in  the  several  States.  In  gaining  this  effect  from 
the  latter  clause,  the  learned  counsel  holds,  by  a  construc 
tion,  I  think,  somewhat  novel,  that  its  meaning  is,  that  the 
citizens  of  each  State,  shall  have  in  each  other  State,  not 
the  same  rights  as  the  citizens  of  the  State  into  which  they 
come,  but,  what  the  learned  counsel  describes  as,  the  rights 
of  a  citizen  of  the  United  States,  in  each  State  into  which 
they  come;  and,  this  being  rather  a  shadowy  description  of 
rights,  not  to  be  found,  I  think,  defined  in  any  constitution 
or  by  any  laws,  the  proposition  ends  in  claiming  as  the  effect 
of  the  clause  in  question,  that  the  citizens  of  each  State,  com 
ing  into  another  State,  besides  the  privileges  and  immunities 
of  citizens  enjoyed  there,  which  they  are  to  receive  in  full, 
are  also  to  be  accorded  all  the  rights  they  had  at  home ;  and 
that  this  clause  (in  its  natural,  and  in  its  established,  con 
struction  so  easily  understood,  so  consonant  with  general 
jurisprudence,  so  important  and  useful  in  preserving  relations 
between  the  citizens  of  different  States,  by  according  freely 
and  at  once  to  every  citizen  who  comes  here,  the  same  rights 
which  our  citizens  have)  is  turned  into  an  instrument  and 
means  of  the  absolute  overthrow  of  State  sovereignty. 
That  is  to  say,  that,  under  this  clause  of  the  Constitution, 


THE  LEMMON  SLAVE  CASE  27 

instead  of  protecting  the  citizens  of  every  State  against 
disparaging  distinctions  in  any  State,  between  them  and 
the  citizens  of  that  State — instead  of  being  a  shield  and  a 
guard — the  Federal  Constitution  arms  them  with  the  codes 
and  statutes  of  their  own  State,  which  they  carry  with  them, 
as  an  additional  system  of  law,  to  be  administered  in  their 
favor,  while  they  remain  lawfully  within  the  State  to  which 
they  have  made  their  visit.  I  say  it  comes  to  this  sub 
stantially,  in  terms;  and  it  must  come  to  this  if  it  varies  at 
all  from  what  seems  to  me,  the  simple  and  necessary  con 
struction,  that  its  effect  is  limited  to  securing  to  citizens  of 
other  States,  while  here,  the  same  rights  and  privileges  with 
our  own  citizens.  For,  although  it  is  very  easy  to  talk  of  a 
"citizen  of  the  United  States,"  it  is  very  difficult  to  find  a 
citizen  of  the  United  States,  that  is  not  a  citizen  of  some 
State,  and  it  is  very  difficult  to  find  in  my  judgment,  a 
citizen  of  any  State  who  is  not  a  citizen  of  the  United  States. 
I  do  not  see  where  you  will  find,  in  the  law  or  Constitution, 
any  description  of  citizenship  of  the  United  States,  as  distin 
guished  from  citizens  of  the  States,  except  in  regard  to  per 
sons  brought  in  ab  extra,  persons  of  foreign  nativity  where  an 
operative  citizenship,  of  the  United  States,  proceeds  from 
the  Federal  power.  But  none  of  us  that  were  born  here 
ever  got  any  right  of  citizenship  of  the  United  States,  except 
by,  and  from,  and  in,  the  fact  that  we  were  citizens  of  some 
State. 

The  course  that  I  shall  think  suitable,  if  the  Court  please, 
to  adopt  in  this  direct  legal  inquiry,  under  this  writ  of  Habeas 
Corpus  now  before  the  Court,  will  be  to  say,  and,  I  think  to 
show,  that,  as  for  legal  cause  for  the  restraint  of  these  persons 
within  the  city  of  New  York,  under  the  circumstances  de 
tailed,  the  Constitution  of  the  United  States,  and  the  Fed 
eral  statutes,  give  no  law  whatever — none — and  that  they 
have  nothing  to  do  with  it.  In  the  first  place,  I  state,  as  a 
point  of  elementary  constitutional  law,  that  the  Federal 


28          SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

Constitution,  and  legislation  under  it,  have,  in  principle 
and  theory,  no  concern  with  the  domestic  institutions,  the 
social  basis,  the  social  relations,  the  civil  conditions,  which 
obtain  within  the  several  States.  Is  there  any  doubt  on 
that  subject?  We  are  all  familiar  with  the  divisions  of 
political  opinion,  that  have  arisen  on  the  question  whether 
this  or  that  particular  power  sought  or  claimed  to  be  exer 
cised  by  the  Government  of  the  United  States,  was  or  was 
not  within  the  grants  of  power  in  the  Federal  Constitution. 
We  all  know  that,  as  lawyers,  we  are  not  unfrequently  called 
upon  to  determine,  whether  this  or  that  exercise  of  govern 
mental  power  by  a  State  authority  is  or  is  not  an  infraction 
upon  the  express  or  implied  power  of  the  Federal  Govern 
ment.  But,  every  lawyer  knows  that  the  whole  jurispru 
dence  of  State  and  Federal  courts  on  these  subjects — as  to 
whether  the  express  power  or  necessary  implication  of  power 
exists  in  the  United  States,  and  whether  the  particular 
action  of  a  State  Government  is  a  violation  of  some  express 
prohibition  upon  its  action  in  the  Federal  Constitution,  or 
is  an  intrusion  and  encroachment  upon  some  explicit  or  im 
plied  power  of  the  Federal  Government — every  lawyer,  I 
say,  knows  that  the  whole  matter  involved  within  the 
limits  of  this  inquiry  constitutes,  as  it  were,  but  the  merest 
fraction  of  the  general  rights,  laws,  institutions,  employ 
ments,  conditions,  relations,  which  build  up  civilized  so 
ciety,  and  make  up  the  body  of  the  subjects  of  the  jurisdic 
tion  of  the  several  State  Governments. 

It  is  very  difficult  to  see  how  it  can  be  claimed  that, 
upon  any  general  theory,  the  Federal  Government  has 
anything  to  do  with  any  questions  regulating  the  rights  and 
titles  to  property — regulating  the  distribution  of  rank  and 
orders  in  society,  if  they  should  ever  come  to  exist,  or  at  all 
touching  the  great  social  fabric,  which  makes  up  a  civil 
State.  I  am,  then,  justified  in  saying  that,  upon  the  whole 
theory  of  the  two  governments,  State  and  Federal,  we  are 


THE  LEMMON  SLAVE  CASE  29 

quite  free  from  any  implication,  or  intendment,  that  the 
Federal  power  has  anything  to  do  with  the  civil  conditions 
and  social  arrangements  within  the  different  States. 

If  we  look  at  the  history  of  the  Constitution,  and  of  the 
opinions  of  the  men  who  framed  it,  we  find  that  a  determined 
stand  was  made  against  anything  like  the  establishment  of  a 
general  government  that  should  exercise  authority,  at  all, 
over  the  general  fabric  and  system  of  the  domestic  condi 
tions  of  the  people.  All  the  different  provinces  had  laws, 
and  customs,  and  arrangements,  with  which  they  were  satis 
fied,  and  they  were  unwilling,  in  the  language  of  Mr.  Ells 
worth,  of  Connecticut,  "to  trust  the  Federal  Government 
with  their  domestic  institutions."  And  we  know  that,  since 
the  formation  of  the  Constitution,  its  amendments,  and  the 
political  controversies  that  have  arisen  under  it,  have  all 
tended  to  confine  the  General  Government  to,  and  restrict 
the  State  Governments  only  in,  the  particular  and  main 
lines  of  authority  that  are  delegated  in  the  Federal  Consti 
tution.  Now,  if  we  had  not  looked  at  the  Federal  Consti 
tution  in  this  light,  it  would  surprise  us  to  see,  in  how  few 
provisions,  and  in  relation  to  how  few  subjects,  it  at  all 
touches,  or  makes  mention  of,  the  condition  of  people 
within  the  States.  There  are  but  four  references,  as  I  con 
strue  the  Constitution,  that  can  bear  this  construction. 

The  first  is  a  reference  to  the  civil  conditions  obtaining 
within  the  States  to  furnish  an  artificial  enumeration  of 
persons,  as  the  basis  of  Federal  Representation  and  direct 
taxation,  distributively  between  the  States. 

The  Constitution  establishes  a  rule  for  the  distribution  of 
representation  in  the  Federal  Government,  among  the  dif 
ferent  States  of  the  Union,  by  a  reference  to  the  condition 
of  people  within  it — that  is  to  say,  instead  of  adopting  the 
natural  numeration  of  population  throughout  this  country, 
as  the  basis  of  distribution  of  Federal  Representation,  it 
does  establish  an  artificial  rule  or  method  of  count,  for  that 


30  SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

purpose  recognizing  social  differences  of  condition  in  parts 
of  the  population.  It  does  not  make  any  discrimination 
between  States,  but  says  throughout  all  the  States,  from 
Massachusetts  to  Georgia,  you  shall  count  all  the  people 
that  come  within  a  certain  description  (which  is  intended  to 
include  everybody  but  slaves,  without  the  odium  of  naming 
them),  and  then  count  three-fifths  of  the  rest,  who  can  be 
none  others  than  slaves. 

The  second  reference  of  the  Federal  Constitution  is  to  the 
political  rights  of  suffrage  within  the  States,  as  supplying  the 
basis  of  the  Federal  suffrage  in  them,  respectively. 

Here,  the  Federal  Government  comes  into  the  States 
merely  to  seek  what  it  shall  find  there:  not  in  the  remotest 
degree  to  establish  anything,  to  preserve  anything,  to 
affirm  or  continue  anything.  It  is  demonstrable  that  each 
State  has  a  complete  control  over  the  suffrage  within  it,  for 
all  Federal  representation. 

The  Constitution  has  expressly  declared,  that  whatever 
each  State  shall  consider  a  proper  basis  of  suffrage  for  rep 
resentation  in  the  more  numerous  body  of  its  legislature, 
shall  be  the  basis  of  suffrage  for  representation  in  Congress. 

The  third  provision,  one  to  which  I  have  already  referred, 
is  that  for  securing  to  the  citizens  of  every  State,  within 
every  other,  the  privileges  and  immunities  (whatever  they 
may  be)  accorded  in  each  to  its  own  citizens.  Let  us  look 
at  the  phraseology  of  that  section,  to  see  whether  it  bears 
any  other  construction  than  the  simple  one  which  I  have 
attached  to  it.  The  words  are  these: 

"The  citizens  of  each  State  shall  be  entitled  to  all  privi 
leges  and  immunities  of  citizens  in  the  several  States." 

It  is  claimed  by  the  learned  counsel  for  the  appellants, 
that  this  should  be  construed  as  if  it  read:  "The  citizens  of 
each  State  shall  be  entitled  to  all  the  privileges  and  im 
munities  of  citizens  of  the  United  States — in  the  several 
States." 


THE  LEMMON  SLAVE  CASE  31 

But  it  is  very  plain  as  it  seems  to  me,  in  the  first  place, 
that  there  is  nothing  in  the  condition  of  a  citizen  of  the 
United  States,  which  would  warrant  the  suggestion,  that 
there  was  any  intention  that  he  should  carry  into  any 
State  social  or  political  rights  which  citizens  there  did  not 
enjoy.  And,  in  the  second  place,  the  natural  and  neces 
sary  construction  of  the  clause  is,  that  the  privileges  and 
immunities  secured  to  citizens  of  each  State,  while  within 
another,  are  the  privileges  and  immunities  that  citizens  of 
the  State,  where  such  privileges  and  immunities  shall  need 
to  be  claimed,  enjoy.  It  establishes,  and  should  establish, 
a  rule  of  equality  and  uniformity,  not  of  distinction  and 
confusion. 

The  fourth  provision  of  the  Constitution,  which  comes 
under  our  consideration,  is  familiarly  known  as  the  "Fugi 
tive  Slave  Clause,"  and  reads  as  follows:  "No  person  held 
to  service  or  labor  in  one  State,  under  the  laws  thereof, 
escaping  into  another,  shall,  in  consequence  of  any  law  or 
regulation  therein,  be  discharged  from  such  service  or  labor, 
but  shall  be  delivered  up  upon  claim  of  the  party  to  whom 
such  service  or  labor  may  be  due." 

This  clause  undoubtedly,  does  affect  the  condition  of 
persons  in  the  States  of  the  Union.  It,  undoubtedly,  does 
affect  an  escaped  slave,  while  within  any  State  of  this 
Union  into  which  he  shall  have  escaped,  with  certain  re 
straints,  impediments,  burdens  and  consequences  of  restora 
tion,  which  are  not  imposed  by  the  government  or  laws  of 
the  State  in  which  he  is  found.  And  here,  for  the  first, 
does  the  Federal  Government,  by  its  own  force,  put  upon 
this  particular  class  of  our  population,  found  in  the  special 
predicament  of  escape  from  the  State  in  which  they  owed 
service,  the  bonds  of  Federal  obligation,  and  destroys  en 
tirely  their  recourse  to  the  protection  which,  otherwise, 
they  could  have  claimed  from  the  laws  of  the  State  in  which 
they  are  found. 


32  SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

Now  I  have  said  that  these  are  the  only  clauses  of  the  Con 
stitution  that  can  be  held  in  any  sense  to  relate,  at  all,  to 
the  condition  of  persons,  civil  or  political,  in  the  States  of 
the  Union,  for  any  purposes  of  Government;  and  that  none 
of  these  clauses  touch  the  question  now  under  discussion. 
The  argument  to  this  effect  in  respect  to  the  "Fugitive 
Slave  Clause  "  is  unanswerable. 

The  general  principles  of  jurisprudence  and  the  decisions 
of  the  Federal  courts,  all  show  that,  but  for  the  existence 
of  this  clause,  an  escaped  slave  would  be  held  by  no  restraint 
or  coercion,  except  such  as  the  State  in  which  he  was  found 
chose  to  establish  and  enforce;  and  that  the  rights  of  the 
master  would  rest  upon  nothing  but  the  comity  or  the  legis 
lation  of  the  State  into  which  the  escape  had  been  made. 
The  existence  of  this  clause  in  the  Constitution  is  not  only 
evidence  that  the  right  of  reclamation  would  not  have 
existed  but  for  its  insertion;  but  it  is  an  argument  of  the 
utmost  force,  that  even  with  this  clause  in  the  Constitu 
tion,  no  right  exists  for  his  master  to  hold  in  servitude,  in 
the  State  of  refuge,  even  an  escaped  slave.  An  escaped 
slave,  after  he  is  restored,  is  held  in  slavery  by  the  laws  of 
the  State  whence  he  escaped  and  to  which  he  returned,  as  he 
was  before.  But  while  he  is  in  another  State,  the  "Fugitive 
Slave  Clause  "  gives  no  authority  to  hold  and  use  him  as  a 
slave.  There  is  no  legal  answer  that  can  be  made  to  our 
writ  of  Habeas  Corpus,  in  respect  to  a  slave  escaped  into 
this  State,  except  that  he  is  held  by  authority  of  Federal 
legislation,  under  the  Constitution,  providing  the  mode  of 
his  recapture  and  restoration  to  his  home  of  slavery. 
Whether  now  it  would  be  held  by  the  Federal  judiciary,  that 
there  existed  a  general  right  on  the  part  of  the  master,  per 
sonally,  to  reclaim  the  slave  by  his  own  direct  force,  as  bail 
may  recover  their  prisoner,  is  doubtful.  But  granting  that 
such  right  exists,  still  there  is  no  right  to  hold  him  in  slavery 
in  the  State  to  which  he  has  escaped.  There  is  the  right  of 


THE  LEMMON  SLAVE  CASE  33 

taking  and  carrying  him  away,  undoubtedly,  either  by  the 
process  of  Federal  law,  or,  perhaps,  by  this  personal  au 
thority  that  belongs  to  the  relation  of  bail  and  prisoner, 
or  master  and  slave;  but  not  to  hold  him  in  slavery;  and 
any  attempt  to  do  so,  or  to  do  anything  except  with  due 
diligence  to  remove  the  escaped  slave  to  the  State  from 
which  he  escaped,  would  not  be  protected  against  our  writ 
of  Habeas  Corpus  by  the  Federal  Constitution  or  Federal 
legislation. 

Before  considering  the  decisions  of  the  United  States 
courts,  which  I  suppose  clearly  establish  the  position  that 
the  Federal  legislature  and  the  Federal  courts  have  nothing 
whatever  to  do  with  the  subject  now  before  this  Court,  I 
will,  very  briefly,  place  before  the  Court  my  views  as  to  the 
existing  law  of  this  State,  on  the  subject  of  the  allowance  or 
permission  of  slavery  within  it. 

If  there  is  nothing  left  to  be  considered  but  whether  our 
law  sustains  or  permits  this  relation  of  master  and  slave, 
if  this  is  the  kind  of  legal  restraint  necessary  to  defeat  of 
its  proper  result  the  writ  of  Habeas  Corpus,  then  we  must 
find  in  our  State  law,  in  some  form,  an  authority  for  the  re 
straint. 

It  is  necessary  for  me,  here,  only  to  suggest,  that  it  is  not 
requisite,  to  support  a  legal  restraint,  that  there  should  be  a 
positive  warrant  or  mandate  of  law  directing  or  requiring 
it.  A  restraint  permitted  by  our  law  is  as  good  an  answer  to 
the  writ  of  Habeas  Corpus  as  a  positive  warrant  or  mandate. 
It  is  not  necessary  that  we  should  have  a  writ  of  execution, 
or  a  warrant  of  committal,  or  that  the  imprisonment  should 
be  in  the  State  prison  or  in  a  jail,  or  that,  in  any  form,  there 
should  be  a  direct  command  of  active  authority.  The 
relations  that  our  law  recognizes,  whether  or  not  they  be 
established  or  regulated  by  statute,  and  which  give,  in  their 
nature,  restraint  over  the  person,  to  this  or  that  degree, 
constitute  a  good  answer  to  uphold  the  exercise  of  that 


34  SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

restraint  to  that  degree.  The  relations  of  husband  and  wife, 
of  parent  and  child,  of  guardian  and  ward,  of  the  drunkard 
and  his  committee,  of  the  lunatic  and  his  committee;  all 
these  relations,  when  the  exigency  of  the  writ  evokes  them 
as  a  cause  of  the  restraint  of  persons,  are  recognized  by  our 
law  as  justifications  for  such  restraint  and  control  as  do  not 
exceed  the  due  measure  which  the  law  allows  to  them. 
But,  if  the  Court  please,  there  can  be  nothing  recognized  by 
law  as  an  occasion  or  justification  of  restraint,  except  some 
general  status  established,  allowed,  recognized,  by  our  law, 
or,  some  positive  mandate  or  warrant.  In  one  or  the  other 
form,  as  matter  of  positive,  actual,  recognized  existence  in 
our  State,  an  answer  must  be  made  to  the  writ,  or  the 
liberty  of  the  subject  of  it  is,  at  once,  secure  to  him.  The 
answer  here  does  not  set  up  any  of  the  natural  relations. 
Nor  does  it  set  up  the  relation  of  apprentice  and  master,  or 
of  guardian  and  ward,  or  any  similar  relations,  which  are 
not  natural  but  yet  are  lawful  relations.  The  answer  is 
slavery;  and  not  slavery  of  the  State  of  New  York,  but 
slavery  of  the  State  of  Virginia.  It  is  slavery  in  Virginia, 
in  transit  through  New  York,  continuing  here  the  relation 
created  by  the  law  in  Virginia,  which  it  is  expected  or  de 
sired,  shall  receive  the  sanction  and  support  of  our  law, 
and  of  this  Court,  for  the  special  purpose  the  occasion  re 
quires. 

But,  I  maintain,  the  law  of  this  State  does  not  permit  the 
existence  of  slavery  within  its  limits.  And,  first,  the  com 
mon  law  of  the  State  does  not  permit  the  existence  of  slavery 
within  its  limits.  I  now  speak  of  the  common  law  of  this 
State  as  we  understand  it,  as  a  system  of  law  governing  the 
relations  of  persons,  and  of  persons  to  things  in  this  State, 
as  a  body  of  law  discriminated  and  separated  from  that  which 
is  established  by  statute.  This  body  of  law  is  derived  from 
England,  the  source  of  the  common  law  of  this  State;  and 
when  I  say  the  common  law  of  this  State  does  not  permit 


THE  LEMMON  SLAVE  CASE  35 

slavery  within  its  limits,  I  fear  no  contradiction,  in  the 
known  judicial  sense  of  that  law. 

Whether  or  not  the  institution  of  slavery  within  this 
State — while  it  existed  and  was  regulated  by  statute,  and 
was  modified  also,  I  have  no  doubt,  by  subjecting  it,  in  some 
degree,  to  the  principles  of  common  right  and  general  jus 
tice  which  lie  at  the  foundation  of  the  common  law  of  the 
State,  and  of  the  nation  from  which  we  inherited  it — whether 
or  not  the  institution  of  slavery  in  this  State  was,  properly 
speaking,  a  part  of  the  common  law  of  this  State,  seems  not 
to  be  a  very  important  inquiry.  I  do  not  suppose  it  should 
be,  properly,  so  considered.  I  suppose  that  the  whole 
course  of  legislation,  the  whole  course  of  judicial  deter 
mination,  treated  the  whole  system  of  slavery  in  this  State 
as  foreign — not  incorporated  into  our  system,  not  permitted 
to  be  moulded  into  that  relation  between  master  and  slave 
which  would  have  followed  from  its  control  by  the  common 
law.  The  cases  I  have  referred  to  from  the  English  books 
(and,  I  take  it,  they  have  not  been  at  all  shaken  by  the  com 
ments  of  the  learned  counsel),  the  cases  show,  that,  by  the 
common  law  of  England,  any  such  status  of  slavery  as  it  is 
known  in  the  United  States,  or  as  is  pleaded  here  as  an 
answer  to  the  writ,  uever  existed.  This  is  not  to  be  doubted. 

Whether,  in  former  times,  villenage  existed  in  England, 
whether  it  was  a  monstrously  iniquitous  oppression,  and 
whether  it  was  inconsistent  for  British  judges  to  frown  upon 
negro  slavery  there,  in  the  eighteenth  century,  because  vil 
lenage  had  obtained  in  earlier  times,  and  whether  this  in 
consistency  justly  subjects  them  to  my  learned  friend's 
derision,  may  be  matter  of  useful  inquiry  in  some  other 
connection  than  the  present.  But  the  common  law  of 
England  never  knew  of  this  condition  of  slavery  which  is 
pleaded  as  an  answer  to  the  writ  of  Habeas  Corpus,  and  as 
legal  cause  for  holding  these  persons. 

The  status  of  slavery,  therefore,  not  being  established  by 


36          -SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

the  common  law  of  England  before  the  Revolution — and 
that  constitutes  our  common  law — we  need  to  find  a  posi 
tive  support  for  slavery  among  our  population,  recognized 
by  the  public  will  of  the  State,  as  manifested  by  legislation, 
in  order  to  sustain  it.  If  obliged  to  rest  upon  the  common 
law,  it  would  have  no  support  whatever. 

What  may,  at  earlier  periods  of  our  history,  have  been 
the  condition  of  our  statute  law  on  this  subject,  comes  to 
be  rather  an  idle  inquiry,  when  we  consider  the  plain  and 
comprehensive  terms  of  the  existing  statute  law  of  the 
State.  My  learned  friend  has  called  the  attention  of  the 
Court — rather  by  way  of  parenthesis,  however, — to  the 
statute  which  it  is  now  necessary  to  look  at  more  distinctly. 

The  Revised  Statutes,  being,  in  the  provisions  I  am  now 
about  to  read,  a  re-enactment  of  the  law  of  1817,  provide  as 
follows:  "No  person  held  as  a  slave  shall  be  imported,  in 
troduced,  or  brought  into  this  State,  on  any  pretence  what 
ever,  except  in  the  cases  hereinafter  specified.  Every  such 
person  shall  be  free.  Every  person  held  as  a  slave  who  hath 
been  introduced,  or  brought  into  the  State,  contrary  to  the 
laws  in  force  at  the  time,  shall  be  free."  (Section  1.) 

"Every  person  born  within  this  State,  whether  white  or 
colored,  is  FREE;  every  person  who  shall  hereafter  be  born 
within  this  State,  shall  be  FREE;  and  every  person  brought 
into  this  State  as  a  slave,  except  as  authorized  by  this  title, 
shall  be  FREE."  (Section  16.) 

I  cannot  think  it  important  gravely  to  discuss  with  my 
learned  friend,  whether  this  law,  in  its  proper  construction, 
does  proscribe  the  existence  of  a  slave  within  this  State,  and 
make  it  a  legal  impossibility  wherever  the  law  has  force. 
He  has  argued,  I  know,  that,  although  the  Legislature, 
besides  the  commercial  word  "imported,"  and  besides  the 
word,  of  Latin  origin,  "introduced"  (which  means  "brought 
within"),  has  also  used  the  words  "brought  into" — that  it 
has  failed  to  make  itself  fairly  understood,  or  to  accom- 


THE  LEMMON  SLAVE  CASE  37 

plish  the  meaning  imputed  in  our  construction,  that  a  slave 
should  not  be  within  this  State.  It  is  said  that  the  true  force 
of  these  terms  is  satisfied  by  the  construction,  and  therefore 
the  true  construction  of  the  clause  should  be,  "that  no  slave 
shall  be  incorporated  into  the  population  of  this  State;  that 
no  slave  shall  be  brought  into  it,  or  imported  into  it,  with 
the  design  and  purpose  that  he  should  become  a  part  of  the 
population  of  this  State."  Exactly  what  that  means, 
exactly  what  limits  to  the  tolerance  or  maintenance  of 
slavery  in  this  State,  this  construction  of  the  statute  would 
impose,  it  is  not  easy  to  say,  nor  do  I  care  to  inquire.  I 
respectfully  submit,  that  the  statute  is  clear,  comprehensive, 
and  decisive  in  its  meaning,  and  in  its  effect.  If  the  statute 
has  the  force  of  law  in  this  State,  there  never  can  be,  on  any 
pretence,  a  person  in  the  condition  of  slavery  within  this 
State,  unless  some  provision  of  that  statute,  found  between 
the  first  and  last  sections  of  it  which  I  have  read  to  the 
Court,  gives  that  right. 

Now,  we  do  find  certain  exceptions  made  by  the  statute 
under  consideration,  for  the  allowance  of  slaves  under  special 
circumstances  within  this  State,  and  among  these  exceptions 
the  following,  being  sections  six  and  seven  of  the  title : 

"  Sec.  6.  Any  person  not  being  an  inhabitant  of  this  State, 
who  shall  be  travelling  to  or  from,  or  passing  through  this 
State,  may  bring  with  him  any  person  lawfully  held  by  him  in 
slavery,  and  may  take  such  person  with  him  from  this  State; 
but  the  person  so  held  in  slavery  shall  not  reside  or  continue 
in  this  State  more  than  nine  months,  and  if  such  residence 
be  continued  beyond  that  time,  such  person  shall  be  free." 

"Sec.  7.  Any  person  who,  or  whose  family  shall  reside 
part  of  the  year  in  this  State,  and  part  of  the  year  in  any 
other  State,  may  remove  and  bring  with  him  or  them,  from 
time  to  time,  any  person  lawfully  held  by  him  in  slavery, 
into  this  State,  and  may  carry  such  person  with  him  or 
them,  out  of  this  State." 


38  SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

In  1841,  this  act  was  passed: 

"The  third,  fourth,  fifth,  sixth,  and  seventh  sections  of 
Title  7,  Chapter  20,  of  the  first  part  of  the  Revised  Statutes, 
are  hereby  repealed." 

This  express  repeal  of  the  sixth  and  seventh  sections, 
which  I  have  read  from  the  Revised  Statutes,  presents  in 
the  most  distinct  and  absolute  form  the  determination  of 
the  people  of  this  State,  that  the  temporary  introduction  of 
slavery  by  transient  visitors  should  not,  under  any  circum 
stances,  be  permitted. 

Your  Honors  will  perceive  that  the  question  now  presented 
is  not  at  all  different  from  what  it  would  have  been,  while 
the  sixth  and  seventh  sections,  that  permitted  a  temporary 
residence  with  the  slave,  were  in  force,  in  the  case  of  a  slave 
attempted  to  be  held  after  the  expiration  of  the  limited  term. 
There  was  a  permission  for  a  specified  period  of  time,  and  a 
declaration  that  if  that  time  were  overpassed,  the  slave 
should  be  free.  Now  no  hospitality  of  any  kind,  or  for  a 
moment,  is  permitted  to  the  master,  with  his  slave,  in  any 
sense  of  retaining  him  as  a  slave. 

Let  us,  then,  consider  a  little  more  fully  whether  the 
Federal  laws  and  Federal  decisions  leave  any  doubt  as  to 
the  complete  exemption  of  the  several  States  from  Federal 
control  in  this  matter.  Now,  your  Honors  will  perceive 
that,  while  we  talk  of  comity  permitting  to  strangers  from 
communities  with  which  we  are  in  peace,  passing  through 
our  State,  this  or  that  privilege,  and  so  long  as  the  extent 
of  this  comity  is  determined  by  our  jurisprudence  and  by 
our  own  Statutes — we  do  control  entirely  the  condition  of 
persons  within  our  State.  If  judicial  determinations,  at  any 
time,  show  greater  hospitality  to  foreign  institutions  than 
public  sentiment  approves,  the  legislature  may  limit,  or 
wholly  terminate  that  comity. 

But  when  it  is  claimed  that  by  a  superior  and  paramount 
law  Mr.  and  Mrs.  Lemmon  can  make  a  good  answer  to  the 


THE  LEMMON  SLAVE  CASE  39 

writ  of  Habeas  Corpus,  in  this  State,  that  they  hold  these 
eight  persons  in  New  York  as  their  slaves,  until  they,  in 
pursuance  of  their  proposed  voyage,  should  take  them  away, 
— that  they  bring  and  hold  their  slaves  here  by  paramount 
law,  and  that  law  is  found  in  the  Constitution  of  the  United 
States,  the  question  arises:  Where  is  the  limit  of  that  right? 
I  defy  the  learned  counsel  for  the  appellants,  if  he  claims 
this  right  under  the  Constitution  of  the  United  States,  to 
fix  a  limit  of  any  kind,  either  in  time,  in  circumstance  or  in 
the  tenure  of  the  slavery  here — unless  it  is  to  be  left  to  some 
tribunal  to  say  whether  the  maintenance  of  slavery  under 
the  circumstances,  and  for  the  time  claimed,  is  within  some 
general  obligation  of  respect  and  regard  between  the  different 
States  of  this  Union.  And  this  brings  the  question  back  to 
the  region  of  comity,  and  not  of  right. 

There  is  no  stopping  place,  in  my  judgment,  for  the  right 
claimed  under  the  Constitution  of  the  United  States,  short 
of  allowing  the  continuance  and  maintenance  of  slavery  just 
so  long  as  citizens  of  other  States  shall  choose  to  reside  within 
this  State,  without  surrendering  their  character  of  citizens 
of  other  States.  Accordingly,  the  claim  now,  as  I  under 
stand  it,  is  that  Virginians  coming  here,  can  bring  their 
slaves  and  keep  them  here  as  long  as  they  remain  Virginians. 
The  claim  is  one  of  vast  proportions,  if  it  be  any  claim  at  all; 
it  has  no  self-imposed  limitations  whatever.  In  nature  and 
substance  it  is  a  claim  that  citizens  of  each  State  may  carry 
into  other  States  the  institutions  of  their  own  State.  Now, 
the  exclusion  of  slavery  from  the  States  has  been  the  subject 
of  legislation  quite  as  much  in  the  slave  as  in  the  free  States. 
I  doubt  whether  there  is  a  slave  State  in  the  Union  that  has 
not,  at  some  time,  or  to  some  extent,  legislated  for  the  exclu 
sion  of  slaves  from  its  territory,  and  prescribed,  as  the  direct 
and  immediate  consequence  of  their  introduction,  that  they 
should  become  free.  Will  any  one  draw  a  distinction  be 
tween  the  right  of  excluding  slaves  from  a  State  from  the 


40  SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

love  of  liberty,  and  excluding  them  from  motives  of  pro 
tection  and  regard  for  slavery?  If  South  Carolina,  from  fear 
of  being  over-stocked  with  slaves,  legislates  to  prevent  the 
introduction  of  more  slaves;  and  if  New  York  regarding  one 
slave  an  overstock,  legislates  to  exclude  that  one,  is  there 
any  difference  as  to  the  power  of  legislation,  growing  out  of 
the  motive  and  purpose  of  it?  I  take  it  not.  Virginia,  as 
early  as  her  emancipation  from  the  dominion  of  the  British 
crown  permitted,  in  1778,  passed  a  law  prohibiting  the  intro 
duction  of  slaves  into  Virginia,  and  prefaced  it  with  a  pre 
amble  that  she  had  been  prevented  from  doing  it  before 
then,  "by  the  inhuman  exercise  of  the  veto  of  the  King  of 
England."  That  law  and  its  preamble  are  a  good  answer, 
from  the  State  of  Virginia,  to  many  of  the  views  now  sup 
ported,  in  its  name  and  behalf,  by  the  learned  counsel. 

Certainly  slavery  cannot  be  "just,  benign,  beneficent, 
consistent  with  pure  benevolence,  and,  indeed  a  positive 
duty," — if  the  exclusion  and  suppression  of  the  institution 
had  been  retarded  by  an  act  of  authority,  which  was  justly 
stigmatized  as  inhuman.  Certainly  we  might  suspect  that 
slavery  itself  was  inhuman,  if  the  suppression  of  it  was  only 
stopped  by  an  act  of  inhuman  tyranny. 

But  later  legislation,  and  legislation  that  has  been  brought 
into  judicial  controversy  in  the  slave  States  and  in  the  Fed 
eral  tribunals,  has  busied  itself  upon  this  same  subject.  The 
case  of  Groves  vs.  Slaughter  (15  Peters)  was  considered, 
and  should  be  considered,  and  is  tenaciously  adhered  to  by 
the  present  Chief  Justice  of  the  United  States,  as  a  decision 
that  the  Federal  government  has  no  voice  or  authority  on 
the  subject  whatever.  How  did  that  case  arise?  The  Con 
stitution  of  Mississippi  adopted  in  1832,  had  prohibited  the 
introduction  of  slaves  as  merchandise  or  for  sale  after  the 
first  day  of  May,  1833.  Notwithstanding  that  provision, 
there  having  been  no  affirmative  legislation,  defining  penal 
ties  and  affixing  consequences  to  the  introduction  of  slaves 


THE  LEMMON  SLAVE  CASE  41 

and  their  sale,  the  people  of  Mississippi  bought  a  good  many 
slaves  from  Kentucky  and  Tennessee,  and  other  States,  and 
gave  their  notes  for  them.  When  the  notes  became  due, 
the  slaves  being  in  Mississippi,  and  still  held  as  slaves,  the 
collection  of  the  notes  was  attempted  to  be  defeated  on  the 
ground  that  the  consideration  was  illegal,  because  the  slaves 
had  been  introduced  into  the  State  of  Mississippi,  contrary 
to  the  provisions  of  the  Constitution.  The  State  courts  of 
Mississippi  held  that  that  was  a  sound  view  of  the  law,  and 
that  from  the  payment  of  the  notes,  amounting  altogether 
to  some  millions  of  dollars,  the  people  of  Mississippi  were 
quite  free;  that  they  might  keep  the  slaves  and  not  pay  the 
notes.  The  question  was  brought  up  before  the  Supreme 
Court  of  the  United  States,  in  the  case  of  Groves  vs.  Slaughter, 
argued  by  Mr.  Webster,  Mr.  Clay,  and  General  Jones,  on 
behalf  of  the  note  holders,  and  by  Mr.  Gilpin,  Attorney- 
General,  and  Mr.  Walker  of  Mississippi  (since  much  dis 
tinguished  in  public  life),  on  the  other  side.  A  very  elaborate 
discussion  was  had  on  one  question  involved,  whether  the 
Constitution  of  Mississippi,  by  its  own  vigor,  operated  such 
an  illegality  in  the  introduction  of  slaves,  as  made  the  notes 
void;  or  whether  it  was  only  binding  upon  the  Legislature  to 
pass  laws  that  should  prohibit  their  introduction  and  should 
affix  such  consequences — such  as  forfeiting  the  purchase,  or 
making  the  slave  free,  or  declaring  the  contract  or  the  secur 
ity  void — as  they  might  see  fit.  It  was  claimed  on  the  part 
of  the  note  holders  that  this  Constitutional  provision  did 
not,  of  itself,  without  legislation  under  it,  create  such  an 
illegality  in  the  contract  of  sale,  as  defeated  the  recovery  of 
the  note.  They  contended,  further,  that  if  that  consequence 
did  follow,  so  as  to  be  a  matter  of  forensic  importance  in  the 
case,  the  Constitution  of  Mississippi,  which  excluded  the 
slaves,  was,  in  this  provision  invalid,  under  the  Constitution 
of  the  United  States;  that,  under  the  commercial  clause,  the 
Federal  Government  had  exclusive  jurisdiction  over  the  regu- 


42  SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

lation  of  commerce  between  the  States;  and  if  commerce 
between  the  States,  then  of  commerce  in  slaves,  as  well  as  in 
any  other  property.  The  proposition,  therefore,  was,  that 
this  clause  in  the  Constitution  of  Mississippi  which  excluded 
slaves  from  the  State  as  merchandise  was  void,  under  the 
Constitution  of  the  United  States,  in  its  commercial  clause. 
Well,  that  case  was  disposed  of  by  the  Federal  judiciary 
holding,  as  matter  of  law,  that  the  notes  were  not  avoided 
by  the  Constitution  of  Mississippi,  but  that  legislation  was 
needed  to  produce  that  effect.  But  the  Court  utterly  scouted 
the  notion  that  the  clauses  of  the  Constitution  of  the  United 
States  appealed  to,  had  anything  to  do  with  this  question  of 
the  introduction  of  slaves  into  either  slave  or  free  States. 
The  opinion  of  the  Court  was  given  by  Mr.  Justice  Thomp 
son,  and  disposed  of  the  cause,  as  I  have  said,  on  the  point  that 
the  Constitution  of  Mississippi  did  not  invalidate  the  notes. 
But  the  magnitude  of  the  question  involved  in  this  claim 
that  the  commercial  power  of  the  Union  had  any  authority 
over  the  introduction  or  determination  of  any  status  inside  of 
a  State,  induced  the  Court  to  regard  it  as  a  matter  concerning 
which  they  must  express  the  most  decisive  opinion.  And  if 
it  be  held  that  the  point  already  decided  disposed  of  the  case, 
and  that  the  further  opinions  of  the  judges  were  unnecessary 
and  superfluous — why  it  is  at  least  as  good  an  authority  as 
the  reasoning  of  the  judges  in  the  Dred  Scott  case,  beyond 
the  point  of  decision  there,  and  which  is  so  much  relied  on 
in  this  argument. 

At  page  506,  Mr.  Justice  McLean  states  the  question, 
"Can  the  transfer  and  sale  of  slaves  from  one  State  to 
another  be  regulated  by  Congress,  under  the  commercial 
power?  "  I  take  it  for  granted  that  there  is  much  more  sense 
in  claiming  that,  when  the  introduction  of  slaves  has  some 
connection  with  commerce,  in  a  proposed  sale,  you  may 
invoke  the  commercial  power  of  the  Union,  than  when  their 
introduction  is  mere  matter  of  convenience  of  travel.  The 


THE  LEMMON  SLAVE  CASE  43 

learned  judge  proceeds:  "The  Constitution  treats  slaves  as 
persons.  By  the  laws  of  certain  States,  slaves  are  treated  as 
property;  and  the  Constitution  of  Mississippi  prohibits  their 
being  brought  into  that  State  by  citizens  of  other  States,  for 
sale,  or  as  merchandise.  Merchandise  is  a  comprehensive 
term,  and  may  include  every  article  of  traffic,  whether  for 
eign  or  domestic,  which  is  properly  embraced  by  a  commer 
cial  regulation.  But  if  slaves  are  considered  in  some  of  the 
States  as  merchandise,  that  cannot  divest  them  of  the  lead 
ing  and  controlling  qualities  of  persons,  by  which  they  are 
designated  in  the  Constitution.  The  character  of  property 
is  given  them  by  the  local  law.  This  law  is  respected,  and 
all  rights  under  it  are  protected  by  the  Federal  authorities; 
but  the  Constitution  acts  upon  slaves  as  persons,  and  not 
as  property.  .  '/.  .  The  Constitution  of  the  United  States 
operates  alike  on  all  the  States,  and  one  State  has  the  same 
power  over  the  subject  of  slavery  as  every  other  State.  If 
it  be  Constitutional  in  one  State  to  abolish  or  prohibit  slav 
ery,  it  cannot  be  unconstitutional  in  another,  within  its  dis 
cretion  to  regulate  it.  ...  The  power  over  slavery 
belongs  to  the  States  respectively.  The  right  to  exercise 
this  power  by  a  State  is  higher  and  deeper  than  the  Consti 
tution.  This  involves  the  prosperity  and  may  endanger  the 
existence  of  a  State.  Its  power  to  guard  against  or  to  remedy 
the  evil,  rests  upon  the  law  of  self-preservation — a  law  vital 
to  every  community  and  especially  to  a  sovereign  State." 

Chief  Justice  Taney  is  not  at  all  behind  Mr.  Justice  Mc 
Lean  in  his  views  of  the  necessary  reservation  to  the  States 
of  complete  control  over  this  whole  subject.  He  says,  at 
page  508:  "In  my  judgment,  the  power  over  this  subject  is 
exclusively  with  the  several  States,  and  each  of  them  has  a 
right  to  decide  for  itself  whether  it  will  or  will  not  allow 
persons  of  this  description  to  be  brought  within  its  limits 
from  another  State,  either  for  sale  or  for  any  other  purpose; 
and  also  to  prescribe  the  manner  and  mode  in  which  they 


44  SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

may  be  introduced,  and  to  determine  their  condition  and 
treatment  within  their  respective  territories;  and  the  action 
of  the  several  States  upon  this  subject  cannot  be  controlled 
by  Congress,  either  by  virtue  of  its  power  to  regulate  com 
merce  or  by  virtue  of  any  other  power  conferred  by  the 
Constitution  of  the  United  States.  I  do  not,  however,  mean 
to  argue  this  question.  I  state  my  opinion  upon  it,  on  ac 
count  of  the  interest  which  a  large  portion  of  the  Union 
naturally  feel  in  this  matter,  and  from  an  apprehension  that 
my  silence,  when  another  member  of  the  Court  has  delivered 
his  opinion,  might  be  misconstrued." 

Mr.  Justice  Story,  Mr.  Justice  Thompson,  Mr.  Justice 
Wayne,  and  Mr.  Justice  McKinley,  concurred  in  these  views 
of  the  Chief  Justice  and  of  Mr.  Justice  McLean. 

The  next  case  to  which  I  will  briefly  ask  your  Honors' 
attention  is  that  of  Prigg  vs.  The  Commonwealth  of  Pennsyl 
vania,  in  the  16th  of  Peters,  and,  especially,  to  the  parts  of 
the  case  that  are  referred  to  in  my  points.  The  Court  is 
familiar  with  the  general  doctrine  of  that  case.  It  raised 
before  the  Federal  Court  for  decision  the  question,  whether 
the  Constitutional  clause  which  provided  for  the  rendition  of 
fugitives  from  service,  and  the  legislation  under  it,  made  the 
subject  one  of  exclusive  Federal  regulation,  and  whether  the 
statute  of  the  State  of  Pennsylvania,  and  of  course  those  of 
New  York  and  other  States,  within  the  same  purview,  were 
constitutional.  The  exclusive  authority  of  Federal  Legisla 
tion,  in  the  premises,  was  fully  established,  and  upon  gen 
eral  reasons  which  established  equally,  that  but  for  the 
clause  in  the  Constitution,  the  whole  subject,  even  in  respect 
to  escaped  slaves,  would  have  been  absolutely  and  exclu 
sively  within  the  control  of  State  authority. 

Judge  Story,  delivering  the  opinion  of  the  Court,  says 
(speaking  of  the  fugitive  slave  clause  of  the  Constitution): 
"The  last  clause  is  that,  the  true  interpretation  whereof  is 
directly  in  judgment  before  us.  Historically,  it  is  well  known, 


THE  LEMMON  SLAVE  CASE  45 

that  the  object  of  this  clause  was  to  secure  to  the  citizens  of 
the  slaveholding  States  the  complete  right  and  title  of  owner 
ship  in  their  slaves,  as  property  in  every  State  of  the  Union 
into  which  they  might  escape  from  the  State  where  they 
were  held  in  servitude.  The  full  recognition  of  this  right 
and  title  was  indispensable  to  the  security  of  this  species  of 
property  in  all  the  slaveholding  States;  and,  indeed,  was  so 
vital  to  the  preservation  of  their  domestic  interests  and  in 
stitutions,  that  it  cannot  be  doubted  that  it  constituted  a 
fundamental  article,  without  the  adoption  of  which  the 
Union  could  not  have  been  formed.  Its  true  design  was  to 
guard  against  the  doctrines  and  principles  prevalent  in  the 
non-slaveholding  States,  by  preventing  them  from  inter 
meddling  with,  or  obstructing,  or  abolishing  the  rights  of  the 
owners  of  slaves. 

"By  the  general  law  of  nations,  no  nation  is  bound  to 
recognize  the  state  of  slavery,  as  to  foreign  slaves  found 
within  its  territorial  dominions,  when  it  is  in  opposition  to 
its  own  policy  and  institutions,  in  favor  of  the  subjects  of 
other  nations  where  slavery  is  recognized.  If  it  does  it,  it  is 
as  a  matter  of  comity,  and  not  as  a  matter  of  international 
right.  The  state  of  slavery  is  deemed  to  be  a  mere  municipal 
regulation,  founded  upon  and  limited  to  the  range  of  the 
territorial  laws.  This  was  fully  recognized  in  Sommer sett's 
case,  Lofft's  Rep.  1,  s.  c.  11  "State  Trials,"  by  Harg,  340, 
s.  c.,  20  Ho  well's  "State  Trials,"  79;  which  was  decided 
before  the  American  Revolution.  It  is  manifest  from  this 
consideration,  that  if  the  Constitution  had  not  contained 
this  clause,  every  non-slaveholding  State  in  the  Union 
would  have  been  at  liberty  to  have  declared  free  all  runaway 
slaves  coming  within  its  limits,  and  to  have  given  them  en 
tire  immunity  and  protection  against  the  claims  of  their 
masters;  a  course  which  would  have  created  the  most  bitter 
animosities,  and  endangered  perpetual  strife  between  the 
different  States.  The  clause  was,  therefore,  of  the  last 


46  SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

importance  to  the  safety  and  security  of  the  Southern  States, 
and  could  not  have  been  surrendered  by  them  without  en 
dangering  their  whole  property  in  slaves.  The  clause  was 
accordingly  adopted  in  the  Constitution  by  the  unanimous 
consent  of  the  framers  of  it;  a  proof  at  once  of  its  intrinsic 
and  practical  necessity." 

Again,  at  pages  622  and  623,  he  says:  "In  the  first  place, 
it  is  material  to  state  (what  has  already  been  incidentally 
hinted  at)  that  the  right  to  seize  and  retake  fugitive  slaves, 
and  the  duty  to  deliver  them  up,  in  whatever  State  of  the 
Union  they  may  be  found,  and  of  course  the  corresponding 
power  in  Congress  to  use  the  appropriate  means  to  enforce 
the  right  and  duty,  derive  their  whole  validity  and  obliga 
tion  exclusively  from  the  Constitution  of  the  United  States, 
and  are  there,  for  the  first  time,  recognized  and  established 
in  that  peculiar  character.  Before  the  adoption  of  the  Con 
stitution,  no  State  had  any  power  whatever  over  the  sub 
ject,  except  within  its  own  territorial  limits,  and  could  not 
bind  the  sovereignty  or  the  legislation  of  other  States.  When 
ever  the  right  was  acknowledged  or  the  duty  enforced  in 
any  State,  it  was  as  a  matter  of  comity  and  favor,  and  not 
as  a  matter  of  strict  moral,  political,  or  international  obliga 
tion  or  duty.  Under  the  Constitution  it  is  recognized  as  an 
absolute,  positive  right  and  duty,  pervading  the  whole 
Union  with  an  equal  and  supreme  force,  uncontrolled  and 
uncontrollable  by  State  sovereignty  or  State  legislation.  It 
is,  therefore,  in  a  just  sense  a  new  and  positive  right,  inde 
pendent  of  comity,  confined  to  no  territorial  limits,  and 
bounded  by  no  State  institutions  or  policy." 

And,  at  page  625  he  proceeds:  "These  are  some  of  the 
reasons,  but  by  no  means  all,  upon  which  we  hold  the  power 
of  legislation  on  this  subject  to  be  exclusively  in  Congress. 
To  guard,  however,  against  any  possible  misconstruction  of 
our  views,  it  is  proper  to  state,  that  we  are  by  no  means  to 
be  understood  in  any  manner  whatsoever  to  doubt  or  to 


THE  LEMMON  SLAVE  CASE  47 

interfere  with  the  police  power  belonging  to  the  States  in 
virtue  of  their  general  sovereignty.  That  police  power  ex 
tends  over  all  subjects  within  the  territorial  limits  of  the 
States,  and  has  never  been  conceded  to  the  United  States. 
It  is  wholly  distinguishable  from  the  right  and  duty  secured 
by  the  provision  now  under  consideration,  which  is  exclu 
sively  derived  from  and  secured  by  the  Constitution  of  the 
United  States,  and  owes  its  whole  efficacy  thereto." 

These  opinions,  included  in  the  judgment  as  pronounced 
by  the  Court,  were  assented  to  by  all  the  judges  who  assisted 
in  the  actual  determination  of  the  case. 

The  next  case  is  that  of  Strader  vs.  Graham,  in  10th  How 
ard,  and  was  of  this  kind:  Graham  was  a  Kentucky  slave 
owner,  and  had  permitted  some  of  his  slaves  to  cross  over 
into  the  State  of  Ohio,  habitually,  for  the  purpose  of  instruc 
tion  in  music,  designing  to  retain  his  property  in  them,  and 
to  make  this  talent,  thus  to  be  cultivated,  productive  to 
himself.  The  slaves  receiving  this  instruction  returned  to 
their  master,  and  afterward  fled  from  his  service,  making 
their  escape  by  means  of  a  steamboat  on  the  Ohio  River. 
By  the  law  of  Kentucky,  in  the  protection  of  slave  property 
against  such  casualties  as  this,  the  proprietors  of  any  steam 
boat  or  other  vessel  upon  the  river,  by  means  of  which  the 
escape  should  be  made,  are  made  responsible  to  the  slave 
owners  in  an  action  for  the  value  of  the  slave.  An  action 
was  brought,  under  this  law,  by  Graham,  against  the  owners 
of  the  boat,  upon  which  the  escape  had  been  made,  in  equity 
to  enforce  a  lien,  given  by  the  statute,  against  the  boat.  The 
litigation,  commenced  in  the  State  Court  of  Kentucky,  ter 
minated  in  a  final  judgment  in  the  Court  of  last  resort,  in 
favor  of  the  slave-owner.  From  that  decision  an  appeal  was 
taken  under  the  25th  section  of  the  Federal  Judiciary  act, 
to  the  Supreme  Court  of  the  United  States,  the  defence  in 
the  Court  below  being  on  the  ground,  in  part  at  least  as  a 
good  and  sufficient  one,  that  these  slaves  had  become  free 


48  SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

by  their  master's  voluntary  introduction  of  them  into  the 
State  of  Ohio,  and  that  the  state  of  slavery  thus  dissolved 
was  incapable  of  reinstatement.  The  25th  section,  as  your 
Honors  know,  carries  up  cases  from  the  courts  of  last  resort 
in  the  States,  when  the  decision  is  alleged  to  have  involved 
the  consideration  of  a  right  secured  under  the  Constitution 
of  the  United  States,  and  has  resulted  in  a  decision  adverse 
to  that  right. 

The  appellants  in  that  case,  on  the  question  of  freedom  or 
slavery,  and  the  considerations  it  involved,  stood  precisely, 
to  illustrate  the  matter,  as  these  appellants  now  before  the 
Court  would  stand  in  the  Supreme  Court  of  the  United 
States,  if  your  Honors'  judgment  here  should  affirm  the 
judgment  of  the  Court  below,  and  an  appeal  should  be  prose 
cuted  from  your  judgment  to  the  Supreme  Court  of  the 
United  States,  upon  the  ground  that  the  right,  to  which  your 
decision  had  been  adverse,  was  protected  by  the  Federal 
Constitution. 

Now,  the  first  and  important  question  in  all  cases  that  are 
carried  into  the  Federal  Judiciary  by  that  method  of  appeal 
is,  whether  the  Appellate  Court  has  jurisdiction  of  the  cause. 
In  other  words,  whether  the  judgment  below  does  contain 
an  adjudication  upon  any  right  under  the  Constitution  of 
the  United  States,  and  whether  the  determination  has  been 
adverse  to  the  right  claimed,  for  both  these  elements  must 
be  found  in  the  decision  of  the  Court  of  last  resort  of  the 
State,  or  there  is  no  appeal  to  the  Supreme  Court  of  the 
United  States  to  reverse  the  judgment,  although  it  may  be 
clearly  erroneous.  The  direct  point,  therefore,  of  Federal 
control  over  the  civil  status  of  persons  within  the  States,  was 
raised  in  the  case  of  Strader  vs.  Graham,  as  a  question  of 
jurisdiction. 

Chief  Justice  Taney,  in  delivering  the  opinion  of  the 
Court,  says:  "The  Louisville  Chancery  Court  finally  de 
cided,  that  the  negroes  in  question  were  his  slaves,  and  that 


THE  LEMMON  SLAVE  CASE  49 

he  was  entitled  to  recover  $3,000  for  his  damages.  And  if 
that  sum  was  not  paid  by  a  certain  day  specified  in  the 
decree,  it  directed  that  the  steamboat  should  be  sold  for  the 
purpose  of  raising  it,  together  with  the  costs  of  suit.  This 
decree  was  afterward  affirmed  in  the  Court  of  Appeals  in 
Kentucky,  and  the  case  is  brought  here  by  writ  of  error 
upon  that  judgment. 

"Much  of  the  argument  on  the  part  of  the  plaintiffs  in 
error  has  been  offered  for  the  purpose  of  showing  that  the 
judgment  of  the  State  Court  was  erroneous  in  deciding  that 
these  negroes  were  slaves.  And  it  insisted  that  their  previ 
ous  employment  in  Ohio  had  made  them  free  when  they 
returned  to  Kentucky. 

"But  this  question  is  not  before  us.  Every  State  has  an 
undoubted  right  to  determine  the  status,  or  domestic  and 
social  condition  of  the  persons  domiciled  within  its  territory, 
except  in  so  far  as  the  powers  of  the  States  in  this  respect  are 
restrained,  or  duties  and  obligations  are  imposed  upon  them 
by  the  Constitution  of  the  United  States,  and  there  is  nothing 
in  the  Constitution  of  the  United  States  that  can  in  any 
degree  control  the  law  of  Kentucky  upon  this  subject.  And 
the  condition  of  the  negroes,  therefore,  as  to  freedom  or 
slavery,  after  their  return,  depended  altogether  upon  the 
laws  of  that  State,  and  could  not  be  influenced  by  the  laws 
of  Ohio.  It  was  exclusively  in  the  power  of  Kentucky  to 
determine  for  itself  whether  their  employment  in  another 
State  should  or  should  not  make  them  free  on  their  return. 
The  Court  of  Appeals  have  determined,  that  by  the  laws  of 
the  State  they  continue  to  be  slaves.  And  their  judgment 
upon  this  point  is,  upon  this  writ  of  error,  conclusive  upon 
this  court,  and  we  have  no  jurisdiction  over  it." 

A  comparison  of  this  case  with  the  Dred  Scott  decision, 
and  with  the  narrative  of  the  litigation  concerning  Dred 
Scott,  as  given  in  the  report  of  that  decision,  will  exhibit  to 
the  Court  the  reason,  as  I  suppose,  that  the  Dred  Scott  con- 


50          SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

troversy  was  not  brought  into  the  Supreme  Court  of  the 
United  States,  by  appeal  from  the  judgment  of  the  Court  of 
Missouri. 

The  litigation  concerning  the  liberty  of  Dred  Scott,  gen 
erally  considered  to  have  been  a  case  made  up  for  the  pur 
pose  of  raising  certain  questions  for  judicial  determination, 
started  in  the  Courts  of  the  State  of  Missouri,  and  had 
reached  final  judgment  in  the  last  Court  of  that  State, 
adverse  to  the  liberty  of  Scott.  Scott  claimed  his  liberty  by 
virtue  of  the  Constitution  of  the  United  States,  just  as  the 
freedom  of  Kentucky  negroes  was  claimed  under  the  Con 
stitution  of  the  United  States.  Pending  this  litigation  in 
the  Missouri  case,  the  decision  was  made  in  the  case  of 
Strader  vs.  Graham,  dismissing  the  appeal  under  the  25th 
section  for  want  of  jurisdiction.  As  this  absolutely  shut  out 
any  consideration  of  the  rights  or  doctrines  on  which  the 
freedom  of  Scott  was  supposed  to  have  been  gained,  an 
abandonment  of  the  litigation  in  the  State  Courts  of  Miss 
ouri  followed,  and  a  new  litigation  by  Scott,  in  the  Federal 
Court,  was  commenced,  whereby,  through  regular  and  gen 
eral  appeals  from  the  Circuit  Court  to  the  Supreme  Court  of 
the  United  States,  the  whole  cause  was  brought  up,  and  the 
Court  found  itself,  as  it  thought,  at  liberty  to  deliberate  upon 
some  matters  of  grave  and  general  import,  political  and 
ethical,  after  they  had  disposed  of  the  inquiry  as  to  the  free 
dom  of  Dred  Scott. 

The  case  Ex  parte  Simmons  (4  Wash.  C.  C.  R.  396),  to 
which  I  have  referred  your  Honors,  seems  a  direct  authority 
upon  the  question  before  us. 

There  the  question  was,  as  to  the  freedom  of  a  slave, 
brought  voluntarily  by  his  master  into  the  State  of  Pennsyl 
vania,  during  the  prevalence  of  laws  there  which  permitted 
the  temporary  residence  of  a  master  with  his  slave  within 
the  jurisdiction  of  that  State.  The  period  allowed  by  the 
statute  being  overpassed,  the  point  was  whether  the  slave 


THE  LEMMON  SLAVE  CASE  51 

was  entitled  to  his  liberty,  and  Judge  Washington  decided 
that  he  was. 

I  come  now,  if  the  Court  please,  to  the  decision  in  the 
Dred  Scott  Case,  the  general  doctrines  of  which  are  invoked 
by  the  appellants  here,  as  appears  by  the  brief,  though  not 
insisted  upon  orally  in  the  argument,  and  my  learned  friend 
has  not  called  the  attention  of  the  Court  to  the  particular 
principles  laid  down  in  the  case,  upon  which  his  reliance  was 
based.  The  general  character  of  that  case,  and  the  exact 
limit  of  judicial  inquiry,  that  its  facts  presented,  have  been 
already  fully  stated  by  my  learned  associate.  An  examina 
tion  of  the  opinion  of  Judge  Nelson  in  that  case  will  show 
that  he  has  confined  himself  to  the  precise  inquiry  that  the 
litigation  properly  presented  for  judicial  determination,  to 
wit,  whether  Dred  Scott  was,  in  Missouri,  and  by  its  law,  a 
slave. 

If  he  was  a  slave,  it  must  be  universally  conceded  that 
he  was  not  a  citizen.  As  the  jurisdiction  in  question,  of  the 
Federal  judiciary  is  confined  to  suits  between  citizens  of 
different  States,  the  moment  you  put  the  plaintiff  in  the 
condition  of  not  being  a  citizen  of  any  State,  of  having  no 
citizenship,  and  no  civil  rights  whatever,  of  course  there  is  no 
jurisdiction,  as  the  plaintiff's  standing  in  Court  rest,  not 
upon  personality,  but  upon  citizenship. 

But  the  Court  after  deciding  this,  did,  through  many  of 
their  judges,  express  opinions  upon,  and  elaborately  argue, 
two  very  important  general  principles,  one  of  a  political 
nature,  and  the  other  coming  within  the  larger  range  of 
general  ethics  and  morality.  One  of  these  points  was,  that 
the  restrictive  clause  of  the  Missouri  Compromise  act  was 
unconstitutional  and  void.  There  was  an  opportunity  for 
discussion,  though  none  for  decision,  on  that  point,  by  reason 
of  this  fact.  Although  the  question  of  Dred  Scott's  freedom 
was  fairly  presented  by  a  two  years'  residence  with  his  master 
in  the  State  of  Illinois— a  residence,  with  the  effect  of  which 


52  SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

the  validity  or  invalidity  of  the  Missouri  Compromise  act 
had  nothing  to  do — yet,  as  the  question  of  the  freedom  of  his 
children  and  of  his  wife  was  also  involved  in  the  case,  their 
residence,  upon  which  their  claim  of  liberty  rested,  hap 
pened  to  be  within  the  portion  of  the  Missouri  territory 
secured  to  freedom  by  the  restriction  of  the  Missouri  Com 
promise  act,  subject,  of  course,  to  its  constitutional  validity. 
The  other  point  of  inquiry  was  purely  historical  and  ethical, 
and  resulted  in  a  very  brief  and  summary  deduction  by  the 
learned  Chief  Justice,  from  the  judicial  and  general  annals 
of  the  country,  that  the  black  men  have  no  rights  "that  white 
men  are  bound  to  respect."  Now  both  these  topics  are 
without  any  application  to  the  real  inquiry  before  this  Court, 
and  I  have  no  occasion  to  refer  to  the  Dred  Scott  decision,  as 
a  determination  or  discussion  of  the  status  of  slavery  in  the 
territories  of  the  United  States. 

That  subject  is  to  be  considered,  either  legislatively  or 
judicially,  where  it  may  properly  arise.  But  I  understand 
the  principles  announced  in  the  opinions  of  the  judges  who 
concur  in  the  judgment  of  the  Court  in  the  Dred  Scott  case, 
to  establish,  in  the  fullest  manner,  the  entire  control  of 
State  authority  over  the  condition  of  all  people  within  it, 
and  to  re-affirm  the  decisions  of  the  Supreme  Court,  to  which 
I  have  called  your  Honors'  attention. 

Thus,  the  Chief  Justice,  delivering  the  opinion  of  the 
Court,  says:  "But  there  is  another  point  in  the  case  which 
depends  on  State  power  and  State  law.  And  it  is  contended, 
on  the  part  of  the  plaintiff,  that  he  is  made  free  by  being 
taken  to  Rock  Island,  in  the  State  of  Illinois,  independently 
of  his  residence  in  the  territory  of  the  United  States;  and 
being  so  made  free,  he  was  not  again  reduced  to  a  state  of 
slavery,  by  being  brought  back  to  Missouri. 

"Our  notice  of  this  part  of  the  case  will  be  very  brief; 
for  the  principle  on  which  it  depends  was  decided  in  this 
Court,  upon  much  consideration,  in  the  case  of  Strader  et 


THE  LEMMON  SLAVE  CASE  53 

al.  vs.  Graham,  reported  in  10th  Howard,  82.  In  that  case, 
the  slaves  had  been  taken  from  Kentucky  to  Ohio,  with 
the  consent  of  the  owner,  and  afterward  brought  back  to 
Kentucky.  And  this  Court  held  that  their  status  or  condi 
tion,  as  free  or  slave,  depended  upon  the  laws  of  Kentucky, 
when  they  were  brought  back  into  that  State,  and  not  of 
Ohio;  and  that  this  Court  had  no  jurisdiction  to  revise  the 
judgment  of  a  State  Court  upon  its  own  laws.  This  was 
the  point  directly  before  the  Court,  and  the  decision  that 
this  Court  had  not  jurisdiction  turned  on  it,  as  will  be  seen 
by  the  report  of  the  case. 

"So  in  this  case,  as  Scott  was  a  slave  when  taken  into  the 
State  of  Illinois  by  his  owner,  and  there  held  as  such,  and 
brought  back  in  that  character,  his  status,  as  free  or  slave, 
depended  upon  the  laws  of  Missouri,  and  not  of  Illinois. 

"It  has,  however,  been  urged  in  the  argument,  that  by 
the  laws  of  Missouri  he  was  free  on  his  return,  and  that  this 
case,  therefore,  cannot  be  governed  by  the  case  of  Strader 
vs.  Graham,  where  it  appeared  by  the  laws  of  Kentucky, 
that  the  plaintiffs  continued  to  be  slaves  on  their  return  from 
Ohio.  But  whatever  doubts  or  opinions  may  at  one  time 
have  been  entertained  on  this  subject,  we  are  satisfied  upon 
a  careful  examination  of  all  the  cases  decided  in  the  State 
Courts  of  Missouri  referred  to,  that  it  is  now  firmly  settled 
by  the  decisions  of  the  highest  Court  in  the  State,  that  Scott 
and  his  family  upon  their  return  were  not  free,  but  were,  by 
the  laws  of  Missouri,  the  property  of  the  defendant;  and 
that  the  Circuit  Court  of  the  United  States  had  no  jurisdic 
tion,  when,  by  the  laws  of  the  State,  the  plaintiff  was  a  slave, 
and  not  a  citizen. 

"Moreover,  the  plaintiff,  it  appears,  brought  a  similar 
action  against  the  defendant  in  the  State  Court  of  Missouri, 
claiming  the  freedom  of  himself  and  his  family  upon  the 
same  grounds  and  the  same  evidence  upon  which  he  relies  in 
the  case  before  the  Court. 


54  SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

"The  case  was  carried  before  the  Supreme  Court  of  the 
State;  was  fully  argued  there;  and  that  Court  decided  that 
neither  the  plaintiff  nor  his  family  were  entitled  to  freedom, 
and  were  still  the  slaves  of  the  defendant;  and  reversed  the 
judgment  of  the  inferior  State  Court,  which  had  given  a 
different  decision. 

"If  the  plaintiff  supposed  that  this  judgment  of  the  State 
Court  was  erroneous,  and  that  this  Court  had  jurisdiction 
to  revise  and  reverse  it,  the  only  mode  by  which  he  could 
legally  bring  it  before  this  Court,  was  by  writ  of  error  directed 
to  the  Supreme  Court  of  the  State,  requiring  it  to  transmit 
the  record  to  this  Court.  If  this  had  been  done,  it  is  too 
plain  for  argument  that  the  writ  must  have  been  dismissed 
for  want  of  jurisdiction  in  this  Court.  The  case  of  Strader 
and  others  vs.  Graham,  is  directly  in  point;  and,  indeed,  inde 
pendent  of  any  decision,  the  language  of  the  25th  section  of 
the  act  of  1789  is  too  clear  and  precise  to  admit  of  contro 
versy." 

Is.  it  not  entirely  clear  that  the  same  principles  of  reason 
ing  and  construction  apply  to  this  case,  now  before  your 
Honors,  and  that  your  judgment  is  not  the  subject  of  appeal 
to  the  Supreme  Court  of  the  United  States? 

Mr.  Justice  Nelson,  on  the  same  point,  says:  "This  ques 
tion  has  been  examined  in  the  Courts  of  several  of  the  slave- 
holding  States,  and  different  opinions  expressed  and  con 
clusions  arrived  at.  We  shall  hereafter  refer  to  some  of 
them,  and  to  the  principles  upon  which  they  are  founded. 
Our  opinion  is,  that  the  question  is  one  which  belongs  to  each 
State  to  decide  for  itself,  either  by  its  legislature  or  courts  of 
justice;  and  hence,  in  respect  to  the  case  before  us,  to  the 
State  of  Missouri — a  question  exclusively  of  Missouri  law, 
and  which,  when  determined  by  that  State,  it  is  the  duty  of 
the  Federal  courts  to  follow. 

"In  other  words,  except  in  cases  where  the  power  is 
restrained  by  the  Constitution  of  the  United  States,  the 


THE  LEMMON  SLAVE  CASE  55 

law  of  the  State  is  supreme  over  the  subject  of  slavery  within 
its  jurisdiction. 

"As  a  practical  illustration  of  the  principle,  we  may 
refer  to  the  legislation  of  the  free  States  in  abolishing  slavery, 
and  prohibiting  its  introduction  into  their  territories. 

"Confessedly,  except  as  restrained  by  the  Federal  Con 
stitution,  they  exercised,  and  rightfully,  complete  and  abso 
lute  power  over  the  subject.  Upon  what  principle,  then, 
can  it  be  denied  to  the  State  of  Missouri?  The  power  flows 
from  the  sovereign  character  of  the  States  of  this  Union; 
sovereign  not  merely  as  respects  the  Federal  Government — 
except  as  they  have  consented  to  its  limitation — but  sover 
eign  as  respects  each  other.  Whether,  therefore,  the  State 
of  Missouri  will  recognize  or  give  effect  to  the  laws  of  Illi 
nois  within  her  territories  on  the  subject  of  slavery,  is  a 
question  for  her  to  determine.  Nor  is  there  any  constitu 
tional  power  in  this  government  that  can  rightfully  control 
her." 

Now,  certainly,  if  this  be  good  law  in  favor  of  slavery,  it  is 
good  law  in  favor  of  liberty.  The  status,  slave  or  free,  is  the 
same  status  for  consideration  and  determination,  whether 
the  judgment  be  in  favor  of  slavery,  or  in  favor  of  liberty. 
And  when,  in  behalf  of  the  free  State  of  Illinois,  it  is  claimed 
that  it  so  changes  the  status  of  any  slave,  who  may  come 
within  its  borders,  that  thereafter  nothing  but  positive 
re-enslavement  can  deprive  him  of  his  condition  of  freedom, 
and  the  judgment  is,  that  Missouri  must  determine  that 
for  itself;  when  Virginia  claims  that  slaves  held  lawfully, 
within  its  limits,  may  still  retain  that  condition  in  the  State 
of  New  York,  must  not  the  decision  be  that  New  York  must 
determine  that  for  itself,  by  its  own  inherent  sovereignty, 
uncontrolled  by  the  Federal  Constitution,  and  that  the 
Supreme  Court  at  Washington  has  no  jurisdiction  to  reverse 
the  judgment  of  this  high  tribunal? 


56  SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

I  read  now  from  the  Opinion  of  Mr.  Justice  Campbell : 

"The  principles  which  this  Court  has  pronounced  con 
demn  the  pretension  then  made  on  behalf  of  the  legislative 
department.  In  Groves  vs.  Slaughter  (15  Pet.),  the  Chief 
Justice  said:  'The  power  over  this  subject  is  exclusively 
with  the  several  States,  and  each  of  them  has  a  right  to 
decide  for  itself  whether  it  will  or  will  not  allow  persons  of 
this  description  to  be  brought  within  its  limits.'  Justice 
McLean  said:  'The  Constitution  of  the  United  States  oper 
ates  alike  in  all  the  States,  and  one  State  has  the  same  power 
over  the  subject  of  slavery  as  every  other  State/  In  Pol 
lard's  Lessee  vs.  Hagan  (3  How.  212),  the  Court  says:  'The 
United  States  have  no  constitutional  capacity  to  exercise 
municipal  jurisdiction,  sovereignty,  or  eminent  domain, 
within  the  limits  of  a  State  or  elsewhere,  except  in  cases 
where  it  is  delegated,  and  the  Court  denies  the  faculty  of 
the  Federal  Government  to  add  to  its  powers  by  treaty  or 
compact." 

So  much  for  the  Dred  Scott  decision,  and  the  opinions 
of  the  learned  Judges  who  concurred  in  the  judgment  then 
pronounced.  I  have  cited  passages  from  their  opinions 
above;  the  whole  tenor  of  the  dissenting  opinions  of  Mr. 
Justice  McLean  and  Mr.  Justice  Curtis  of  course  carrying 
these  principles  to  even  further  results. 

The  passenger  case,  the  State  of  New  York  vs.  M iln  (in  the 
llth  of  Peters)  will  be  found  fully  to  sustain  these  views. 
The  later  passenger  cases,  which  fill  a  great  part  of  the  7th 
of  Howard,  are  much  relied  upon  by  the  learned  counsel  for 
the  appellants,  and  references  to  them  are  largely  spread 
upon  his  points,  with  the  view  of  showing  that  this  intro 
duction  of  persons  into  the  States,  does,  in  some  sort,  fall 
within  the  commercial  power  of  Congress,  and  that  the 
doctrine  of  these  cases,  which  held  invalid  the  Law  of  New 
York,  and  the  similar  Law  of  Massachusetts,  imposing  a  tax 
upon  the  introduction  of  passengers  into  those  States  re- 


THE  LEMMON  SLAVE  CASE  57 

spectively,  has  a  bearing  upon  the  question  at  bar.  Those 
cases  were  decided  by  a  Court,  as  nearly  divided  as  a  Court 
of  an  uneven  number  can  be — five  Judges  holding  the  stat 
utes  to  be  unconstitutional,  but  solely  upon  the  ground  that 
they  were,  in  effect  and  form,  a  tax  upon  commerce.  The 
five  Judges  who  concurred  in  the  opinion  were  Justices 
McLean,  Catron,  McKinley,  Wayne,  and  Grier.  Those 
who  dissented  were  the  Chief  Justice  and  Justices  Nelson, 
Woodbury,  and  Daniel. 

But  your  Honors  will  perceive  that  the  majority  of  the 
Court  was  made  by  the  adhesion  of  Justice  McLean  to  the 
decision.  The  Chief  Justice  manfully  contended  that 
the  decision  in  Groves  vs.  Slaughter  had  foreclosed  the  Court 
from  considering  any  question,  even  as  a  question  of  taxa 
tion,  touching  the  regulation  or  prevention  of  the  introduc 
tion  of  any  persons  into  the  States,  this  being  a  most  sensi 
tive  point  with  the  slaveholding  States.  Mr.  Justice  Mc 
Lean,  however,  joined  in  the  opinion  that  it  was  a  tax  upon 
commerce,  and,  in  that  light  alone,  regarded  the  State  laws 
as  an  unconstitutional  interference  with  the  commercial 
power  of  Congress.  The  criticism  which  I  have  made  upon 
the  composition  of  the  majority  of  the  Court  in  the  instance 
of  Justice  McLean,  will  apply  to  Justice  Wayne  and  the 
other  members  of  the  Court  from  the  slaveholding  States, 
who  never  have  been  doubtful  in  their  opinions  or  judgments 
upon  this  exclusive  control,  by  the  Slave  States,  of  the  whole 
subject  of  slavery. 

A  reference  to  the  opinions  of  the  majority  of  the  Court  in 
these  cases  will  show,  that  it  is  solely  as  taxation  upon  com 
merce,  imposed  upon  a  vessel  as  it  arrives,  with  its  freight  of 
passengers  on  board,  that  interference  with  the  commercial 
power  of  the  Federal  Constitution  can  be  rightfully  charged 
upon  the  State  legislation  then  brought  in  question.  Your 
Honors  are  aware  that  the  modification  of  our  passenger 
laws,  made  in  consequence  of  the  decisions  I  have  cited, 


58          SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

have  accomplished,  in  effect,  and  in  result,  substantially 
the  same  security  and  indemnity  to  this  State,  against  the 
introduction  of  burdensome  emigrants,  as  the  obnoxious 
laws  produced. 

The  method  now  taken  exacts  a  bond  that  each  passenger 
shall  not  become  chargeable  upon  the  State,  and  then,  by  a 
general  provision,  permits  in  lieu  of  this  bond  a  moderate 
commutation  in  money.  The  Chief  Justice  in  his  dissenting 
opinion  in  these  cases,  reiterates  his  opinions  so  plainly  and 
decisively  expressed  in  the  cases  which  I  have  cited. 

The  Chief  Justice  says:  "The  first  inquiry  is,  whether, 
under  the  Constitution  of  the  United  States,  the  Federal 
Government  has  the  power  to  compel  the  several  States  to 
receive,  and  suffer  to  remain  in  association  with  its  citizens, 
every  person  or  class  of  persons  whom  it  may  be  the  policy 
or  the  pleasure  of  the  United  States  to  admit.  In  my  judg 
ment,  the  question  lies  at  the  foundation  of  the  controversy 
in  this  case.  I  do  not  mean  to  say  that  the  General  Gov 
ernment  have,  by  treaty  or  act  of  Congress,  required  the 
State  of  Massachusetts  to  permit  the  aliens  in  question  to 
land.  I  think  there  is  no  treaty  or  act  of  Congress  which 
can  be  justly  so  construed.  But  it  is  not  necessary  to  exam 
ine  that  question  until  we  have  first  inquired  whether  Con 
gress  can  lawfully  exercise  such  a  power,  and  whether  the 
States  are  bound  to  submit  to  it.  For  if  the  people  of  the 
several  States  of  the  Union  reserved  to  themselves  the  power 
of  expelling  from  their  borders  any  person  or  class  of  persons, 
whom  it  might  deem  dangerous  to  its  peace,  or  likely  to 
produce  a  physical  or  moral  evil  among  its  citizens,  then  any 
treaty  or  law  of  Congress  invading  this  right,  and  authoriz 
ing  the  introduction  of  any  person  or  description  of  persons 
against  the  consent  of  the  State,  would  be  an  usurpation 
of  power  which  this  Court  could  neither  recognize  nor 
enforce. 

"I  had  supposed  this  question  not  now  open  to  dispute. 


THE  LEMMON  SLAVE  CASE  59 

It  was  distinctly  decided  in  Holmes  vs.  Jemison  (14  Pet.  540) ; 
in  Groves  vs.  Slaughter  (15  Pet.  449);  and  in  Prigg  vs.  The 
Commonwealth  of  Pennsylvania  (16  Peters,  539). 

"If  these  cases  are  to  stand,  the  right  of  the  States  is 
undoubted. 

"If  the  State  has  the  power  to  determine  whether  the 
persons  objected  to  shall  remain  in  the  State  in  association 
with  its  citizens,  it  must,  as  an  incident  inseparably  con 
nected  with  it,  have  the  right  also  to  determine  who  shall 
enter.  Indeed,  in  the  case  of  Groves  vs.  Slaughter,  the  Mis 
sissippi  Constitution  prohibited  the  entry  of  the  objection 
able  persons,  and  the  opinions  of  the  Court  throughout 
treat  the  exercise  of  this  power  as  being  the  same  with  that 
of  expelling  them  after  they  have  entered. 

"Neither  can  this  be  a  concurrent  power,  and  whether  it 
belongs  to  the  General  or  to  the  State  Government,  the 
sovereignty  which  possesses  the  right  must  in  its  exercise 
be  altogether  independent  of  the  other.  If  the  United 
States  have  the  power,  then  any  legislation  by  the  State  in 
conflict  with  a  treaty  or  act  of  Congress  would  be  void. 
And  if  the  States  possess  it,  then  any  act  on  the  subject  by 
the  General  Government,  in  conflict  with  the  State  law, 
would  also  be  void,  and  this  Court  bound  to  disregard  it. 
It  must  be  paramount  and  absolute  in  the  sovereignty  which 
possesses  it.  A  concurrent  and  equal  power  in  the  United 
States  and  the  States  as  to  who  should  and  who  should  not 
be  permitted  to  reside  in  a  State,  would  be  a  direct  conflict  of 
powers  repugnant  to  each  other,  continually  thwarting  and 
defeating  its  exercise  by  either,  and  could  result  in  nothing 
but  disorder  and  confusion. 

"I  think  it,  therefore,  to  be  very  clear,  both  upon  princi 
ple  and  the  authority  of  adjudged  cases,  that  the  several 
States  have  a  right  to  remove  from  among  their  people,  and 
to  prevent  from  entering  the  State,  any  person,  or  class  or 
description  of  persons,  whom  it  may  deem  dangerous  or  in- 


60  SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

jurious  to  the  interest  and  welfare  of  its  citizens;  and  that 
the  State  has  the  exclusive  right  to  determine,  in  its  sound 
discretion,  whether  the  danger  does  or  does  not  exist,  free 
from  the  control  of  the  General  Government." 

This  review  of  the  judgments  of  the  Federal  Court  shows, 
that  in  whatever  points  the  judgment  and  doctrines  of  the 
Supreme  Court  of  the  United  States,  as  recently  promulgated, 
may  be  supposed  to  be  unfavorable  to  personal  liberty,  they 
cannot  be  charged  with  being  at  all  inconsiderate  of  the  vital 
and  essential  point,  that  within  the  States  the  civil  and 
social  condition  of  all  persons  is  exclusively  governed  by 
State  authority,  excepting  only  in  the  precise  case  of  a 
fugitive  from  labor.  In  that  case  the  inquiry  arises  not 
under  the  commercial  clause,  nor  under  the  privilege  and 
immunity  clause,  but  under  the  express  clause  applicable, 
in  terms,  to  the  subject. 

Before  passing  from  this  topic,  I  ought,  perhaps,  to  notice 
one  suggestion  in  regard  to  the  construction  of  this  privilege 
and  immunity  clause,  that  to  give  its  apparent  and  natural 
meaning  involves  an  absurdity.  It  is  said  for  a  citizen  of 
Virginia  to  claim,  by  virtue  of  that  clause,  in  the  State  of 
New  York,  the  full  privileges  of  a  citizen  of  New  York, 
would  include  the  political  rights  of  a  citizen  in  the  govern 
ment  of  the  State.  The  very  statement  of  this  difficulty 
refutes  it.  The  clause  confers  or  secures  no  privileges  or 
immunities,  except  so  long  as  the  sojourner  remains  a  citizen 
of  the  State  whence  he  comes.  Its  operation  ceases  the 
moment  the  citizenship  of  the  State  into  which  he  has  come 
is  assumed.  It  cannot,  therefore,  clothe  the  sojourner  with 
rights,  the  exercise  of  which  transmutes  him,  by  the  mere  act, 
into  a  citizen  of  the  new  State,  and,  by  the  same  act,  divests 
him  of  his  original  citizenship.  No  one  can  be  a  citizen  of 
two  independent  sovereignties  at  the  same  time.  The  re 
quired  limitation  is  found  in  the  terms  used,  and  in  the 
nature  of  the  subject  to  which  they  are  applied. 


THE  LEMMON  SLAVE  CASE  61 

I  now  beg  to  ask  the  attention  of  the  Court  to  some  cases 
in  the  Virginia  reports  of  much  interest  on  this  subject,  of  the 
power  of  a  sovereign  State  over  the  status  of  slavery  within  it, 
and  of  the  limitation  of  the  condition  of  slavery  to  that  form 
and  extent  alone,  in  which  it  is  supported  by  the  positive 
law  of  the  State.  The  case  of  Butt  vs.  Rachel,  found  in  4 
Munford's  Reports,  page  209,  was  decided  in  1813,  in  the 
Court  of  Appeals  of  Virginia.  The  case  did  not  arise  under 
the  Constitution  of  the  United  States,  but  affirms  the  gen 
eral  doctrine,  that  no  State,  even  if  it  has  a  status  of  slavery 
within  it,  and  recognizes  such  condition  in  its  population  as 
lawful  and  politic,  by  comity,  recognizes  the  lawfulness  within 
its  borders  of  any  other  than  that  very  slavery  which  its 
own  law  creates  and  upholds.  The  note  of  the  case  is  as 
follows: 

"A  native  American  brought  into  Virginia  since  the  year 
1691,  could  not  lawfully  be  held  in  slavery  here;  notwith 
standing  such  Indian  was  a  slave  in  the  country  from  which 
he  or  she  was  brought." 

Now,  this  slave  introduced  into  Virginia,  and  concerning 
whose  status  this  litigation  was  raised,  was  brought  from  the 
island  of  Jamaica,  and  was  lawfully  there  a  slave  in  the 
hands  of  his  master.  The  master  coming  into  Virginia  with 
the  slave,  claimed  the  right  of  holding  him  in  slavery  there. 
Your  Honors  will  not  fail  to  notice  how  differently  Virginia 
stood  in  relation  to  this  subject  of  slavery,  from  the  State  of 
New  York.  Virginia  did  not  proscribe  the  enslavement  of 
Indians  as  an  unlawful  source  of  slavery;  on  the  contrary, 
as  your  Honors  have  been  informed  by  the  learned  counsel 
for  the  appellants,  the  comprehension  of  slavery  in  Virginia 
embraced  the  native  tribes;  many  of  their  number  became 
slaves,  and  now,  their  descendants  form  a  portion  of  the 
slave  population  of  Virginia.  '„; 

But,  in  1691,  the  colonial  government  of  Virginia  passed 
a  law,  not,  in  terms,  abolishing  the  system  of  Indian  slavery, 


62  SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

but  a  law  permitting  free  trade  with  the  Indians.  This 
statute  was  immediately  seized  upon  by  the  Courts  of 
Justice  of  Virginia,  as  involving  the  necessary  legal  intend- 
ment,  that  the  enslavement  of  these  people,  that  were  thus 
recognized  as  lawful  parties  to  commercial  intercourse,  was 
unlawful,  such  recognition  being  inconsistent  with  the 
absolute  denial  of  personal  rights,  which  lay  at  the  founda 
tion  of  slavery. 

Here,  then,  was  a  question  of  the  hospitality  of  the  laws 
and  policy  of  Virginia,  a  slaveholding  community,  to  this 
condition,  in  the  person  of  a  slave  brought  within  it  from 
another  slaveholding  community.  Certainly  none  of  the 
reasons  for  aversion  to,  and  proscription  of,  slavery,  per  se, 
could  very  well  apply,  on  the  part  of  Virginia,  against  per 
mitting  this  imported  slave  of  Indian  origin  to  continue  a 
slave  in  Virginia. 

But  what  was  the  question?  It  was,  whether  there  was 
any  positive  municipal  law  of  Virginia,  whereby  such  a 
status  of  slavery  could  be  affirmatively  maintained,  in  re 
spect  of  such  a  person,  and  the  Court  decided  that  there  was 
not,  and  that  this  man,  a  slave  in  Jamaica,  was  free  in  Vir 
ginia.  No  slaves  but  her  own  could  breathe  the  air  of 
Virginia!  The  application  may  seem  strange;  nevertheless, 
upon  the  soundest  principles  of  jurisprudence,  of  the  slave, 
as  well  as  of  the  free,  States,  the  judgment  was  correct. 

The  cause  was  argued  by  Mr..Wickham  and  Mr.  Wirt,  two 
of  the  ablest  lawyers  which  our  country  has  produced.  Mr. 
Wirt,  arguing  for  the  freedom  of  the  alleged  slave,  says: 
"Since  1691  no  Indian  could  be  held  in  bondage.  I  do  not 
contend  merely  that  Indians  could  not  be  reduced  into 
slavery,  but  they  could  not  be  held  as  slaves.  This  was  the 
plain  consequence  of  'free  and  open  trade  with  all  Indians 
whatsoever,  at  all  times  and  in  all  places.'  It  was  not 
conferring  any  boon  upon  them,  but  merely  acknowledging 
the  rights  which  God  and  nature  gave." 


THE  LEMMON  SLAVE  CASE  6S 

Mr.  Wickham  in  answer  seems  to  have  recognized  fully 
the  general  rules  of  jurisprudence  for  which  I  have  occasion 
to  contend.  He  says:  "Mr.  Wirt  contends  that  Indians 
are,  naturally,  entitled  to  freedom.  So  are  negroes;  but 
this  does  not  prevent  their  being  slaves.  I  admit  the  right 
to  make  them  slaves  must  depend  on  positive  institution. 
What  I  contend  for  is,  that  all  persons  to  whom  the  general 
provisions  of  our  slave  laws  apply,  may  be  slaves  here, 
provided  they  were  slaves  by  the  laws  of  the  country  from 
which  they  were  brought  hither." 

In  the  2nd  of  Henning  and  Munford,  in  a  case  decided  in 
1808,  the  same  question  arose  and  was  thus  disposed  of  in 
the  judgment  of  the  Court.  "No  native  American  Indian 
brought  into  Virginia  since  the  year  1691,  could,  under  any 
circumstances,  be  lawfully  made  a  slave." 

The  remaining  consideration,  if  the  Court  please,  to  which 
I  shall  ask  your  attention,  and  which  will  require  from  me 
some  brief  illustration,  concerns  the  law  of  nature  and  of 
nations,  as  bearing  upon  the  doctrine  of  comity.  For, 
after  all,  a  support  for  this  hospitality  to  slavery  must  be 
looked  for  from  some  other  source  than  in  the  Constitution 
or  laws  of  the  United  States,  or  in  the  decisions  of  the 
Supreme  Court  of  the  United  States.  No  appeal  can  be 
addressed  to  this  Court,  on  which  to  rest  their  judicial  tol 
eration  of  slavery,  except,  first,  that  the  State  by  its  authen 
tic  positive  legislation  has  not  proscribed  and  prohibited 
the  temporary  allowance  of  this  condition  within  our  ter 
ritory;  or,  second,  that  nothing  in  the  public  and  general 
law,  or  in  the  customs  or  institutions  of  this  State,  has  this 
effect. 

This  brings  me  to  the  third  point  of  my  brief,  to  which  I 
respectfully  ask  the  attention  of  the  Court. 

The  citation  from  Story's  "Conflict  of  Laws"  is  to  the 
effect  that  the  whole  judicial  inquiry  open  to  any  court  is 
simply,  whether  in  the  laws  and  institutions,  social  and 


64          SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

civil,  of  the  State  can  be  found  any  such  principles  as  make 
it  possible  or  proper,  that  the  rights  claimed  to  be  exercised 
during  their  stay  within  the  State,  by  transient  or  other 
residents,  not  subjects  or  citizens,  should  be  permitted.  If 
the  Court  find  no  positive,  clear,  certain,  and  explicit  ex 
pression  of  the  public  will  through  the  authentic  organs  of 
its  manifestation,  it  may  then  explore  the  regions  of  general 
jurisprudence  and  social  ethics,  to  determine  whether  the 
desired  comity  can  be  extended,  without  injury  to  the 
policy  of  the  State.  The  reference  to  Vattel,  under  the 
same  point  gives  the  view  of  that  eminent  publicist  upon  the 
moral  personality  of  a  political  society.  He  says,  "Nations 
or  States  are  bodies  politic,  societies  of  men  united  together 
for  the  purpose  of  promoting  their  mutual  safety  and  ad 
vantage,  by  the  joint  efforts  of  their  combined  strength. 
Such  a  society  has  her  affairs  and  her  interests; she  deliberates 
and  takes  resolutions  in  common,  thus  becoming  a  moral 
person,  who  possesses  an  understanding  and  a  will  peculiar 
to  herself,  and  is  susceptible  of  obligations  and  rights." 

Your  inquiry  then  is,  whether  this  moral  person,  the 
State  of  New  York,  having  an  understanding  and  will  of  its 
own,  after  deliberation,  and  taking  resolutions,  has  or  has  not 
thought  fit  to  manifest  hostility  to  the  institution  of  slavery. 

The  learned  counsel  for  the  State  of  Virginia  says,  that 
the  resolution  of  1857,  passed  by  the  legislature  of  this 
State,  is  not  to  be  taken  into  account  in  determining  the 
rights  of  these  parties,  or  the  policy  and  purpose  of  the 
State  of  New  York  on  the  subject  of  slavery.  Well,  as  far 
as  I  can  see,  this  resolution  does  not  really  go  beyond  the 
scope  and  effect  of  the  legislation  of  1830,  as  modified  by  the 
amendment  of  1841,  to  which  I  have  called  the  attention  of 
the  Court. 

This  resolution  is  certainly  very  moderate  in  its  phrase,  to 
have  drawn  upon  it  so  severe  an  epithet  from  the  learned 
counsel  in  his  points,  as  to  characterize  it  as  "a  treasonable 


THE  LEMMON  SLAVE  CASE  65 

resolution";  a  phrase  which,  when  used  otherwise  than  in  the 
newspapers,  or  at  the  hustings,  may  be  supposed  to  have 
some  definite  moral,  if  not  legal,  force. 

This  resolution  is  simply  to  this  effect:  that  slavery  shall 
not  be  allowed  within  our  borders,  in  any  form,  or  under 
any  pretense,  or  for  any  time,  however  short.  The  second 
section  of  the  act  of  1830  expressly  provides,  that  nothing 
in  the  first  section  thereof  (the  section  prohibiting  slavery 
already  quoted),  shall  be  deemed  "to  discharge  from  service 
any  person  held  in  slavery,  in  any  State  of  the  United  States, 
under  the  laws  thereof,  who  shall  escape  into  this  State." 
This,  certainly,  is  a  loyal  and  respectful  recognition  of  the 
binding  obligation  of  the  Federal  Constitution  in  respect 
to  the  rendition  of  fugitive  slaves.  In  this  state  of  our  law, 
where  is  the  treason  in  the  resolution  of  1857?  How  can 
there  be  treason  without  traitors?  Who  are  the  traitors? 
Is  this  a  bold  figure  of  speech,  or  does  the  learned  counsel, 
speaking  as  the  representative,  here,  of  the  State  of  Vir 
ginia,  mean  to  be  understood  as  imputing  treason  in  act, 
or  word,  or  thought,  to  the  honorable  senators  and  repre 
sentatives  who  joined  in  that  legislative  resolution?  Is  it 
just,  is  it  suitable  to  charge  a  law,  or  a  resolution  of  this 
State,  with  being  treasonable,  because  it  does  not  accord  with 
the  learned  counsel's  construction  of  the  meaning  and  effect 
of  the  Federal  Constitution? 

Were  the  laws,  by  which  we  taxed  passengers,  treasonable 
laws,  because  the  Supreme  Court  of  the  United  States  held 
that  they  were  unconstitutional?  Is  a  resolution  which, 
only  by  a  most  extravagant  construction,  can,  in  its  own 
terms,  be  tortured  into  a  conflict  with  the  fugitive  slave 
clause  of  the  Constitution  of  the  United  States,  and  when 
there  stands  upon  our  statute  book  an  express  exception  of 
the  case  covered  by  that  clause — is  such  a  resolution  to  be 
charged  with  treason?  I  take  it  not,  and  that  the  epithet 
can  only  be  excused  as  an  unguarded  expression. 


66  SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

But  we  say,  that  if  the  statute  cited  has  not  the  con 
struction  which  we  claim  for  it,  and  if  the  resolution  of 
1857,  so  far  as  the  case  at  bar  is  concerned,  cannot  be  re 
garded  as  indicating  to  this  Court  what  the  disposition  of 
this  State  in  respect  to  slavery  is,  we  say,  without  and  aside 
from  such  manifest  enactment  of  the  sovereign  will  in  the 
premises,  as  matter  of  general  reason  and  universal  authority, 
the  status  of  slavery  is  never  upheld  in  the  case  of  strangers, 
resident  or  in  transit,  when  and  where  the  domestic  laws 
reject  and  suppress  such  status,  as  a  civil  condition  or  social 
relation. 

The  same  reasons  of  justice  and  policy  which  forbid  the 
sanction  of  law  and  the  aid  of  public  force  to  the  proscribed 
status  among  our  own  population,  forbid  them  in  the  case  of 
strangers  within  our  own  territory. 

The  status  of  slavery  is  not  a  natural  relation,  but  is 
contrary  to  nature,  and  at  every  moment  it  subsists  it  is 
an  ever  new  and  active  violation  of  the  law  of  nature. 

Citations  from  the  "Law  of  Nature,"  I  am  aware,  are 
open  to  the  objection  of  vagueness  and  impossibility  of 
verification,  and  a  grave  English  judge  is  said  once  to  have 
discomforted  a  rhetorical  advocate,  who  appealed  fre 
quently  to  the  "book  of  nature"  for  his  authority,  by  asking 
for  the  volume  and  page.  I  am  fortunate  in  my  present 
appeal  to  the  "law  of  nature,"  in  finding  a  literal  and  written 
statement  of  its  proscription  of  slavery  in  a  document,  of 
which  I  make  profert,  and  of  whose  "absolute  verity," 
as  a  record,  the  counsel  for  the  State  of  Virginia  can  hardly 
make  question;  I  mean,  to  be  sure,  the  Constitution  of  the 
State  of  Virginia.  It  is  true  the  portion  of  this  instrument 
which  I  shall  read,  labors  under  the  double  opprobrium  of 
having  been  originally  written  when  men's  minds  were  in 
flamed  with  the  love  of  liberty,  at  the  period  of  1776,  and  of 
bearing  the  impress  of  the  same  pen  which  drafted  the  great 
charter  of  our  national  existence,  the  Declaration  of  In- 


THE  LEMMON  SLAVE  CASE  67 

dependence.  But  the  force  of  these  aspersions  upon  its 
credit,  let  us  hope,  is  somewhat  broken  by  its  readoption 
in  1829  and  again  so  late  as  1851. 

In  the  Bill  of  Rights  of  the  Constitution  of  Virginia,  and 
as  its  first  article  we  find  it  thus  written:  "1.  That  all  men 
are,  by  nature,  equally  free  and  independent,  and  have  certain 
inherent  rights,  of  which,  when  they  enter  into  a  state  of 
society,  they  cannot,  by  any  compact,  deprive  or  divest 
their  posterity:  namely,  the  enjoyment  of  life  and  liberty, 
with  the  means  of  acquiring  and  possessing  property,  and 
pursuing  and  obtaining  happiness  and  safety." 

I  may  be  permitted  to  observe,  in  passing,  that  I  find  in 
this  Virginia  "Bill  of  Rights,"  a  most  distinct  statement  of 
the  doctrine  I  have  asserted,  as  to  the  absolute  and  exclusive 
supremacy  of  its  own  laws  in  every  State.  The  text  reads 
as  follows:  "14.  That  the  people  have  the  right  of  uniform 
government;  and  therefore  that  no  government  separate 
from,  or  independent  of,  the  Government  of  Virginia,  ought 
to  be  erected  or  established  within  the  limits  thereof." 

That,  I  take  it,  means  that  the  laws  or  customs  of  no  other 
State  are  to  control  the  status  of  any  person  in  Virginia, 
for  any  length  of  time,  or  under  any  circumstances,  but 
uniformity  must  prevail  in  the  laws  and  in  their  adminis 
tration. 

I  find,  too,  in  this  instrument  the  best  evidence,  that  the 
statesmen  of  Virginia  felt  no  such  contempt  for  "general 
principles"  and  their  practical  influence  in  the  conduct  of 
society,  in  the  framing  of  government,  the  enacting  and  ad 
ministration  of  laws,  as  her  learned  counsel,  here,  has  made 
so  prominent.  The  Virginians  were  always  doctrinarians, 
and  liked  to  see  things  squarely  set  forth  in  black  and  white. 
The  "Bill  of  Rights"  thus  teaches  the  true  basis  of  freedom 
and  the  best  hopes  for  its  security.  "15.  That  no  free 
government,  or  the  blessing  of  liberty,  can  be  preserved  to 
any  people,  but  by  a  firm  adherence  to  justice,  moderation, 


68  SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

temperance,  frugality  and  virtue,  and  by  a  frequent  recur 
rence  to  fundamental  principles." 

But  to  return  to  the  argument :  In  dealing  with  this  ques 
tion  of  comity,  we  must  look  with  some  definiteness  at  this 
institution  of  slavery  which  seeks,  however  transiently  and 
casually,  the  tolerance  of  our  society,  the  support  of  our  law. 
We  must  look  slavery  square  in  the  face.  Certainly,  no  man 
could  be  braver  than  the  learned  counsel  in  the  moral,  social, 
juridical,  and  legal  principles  which  he  avows.  Yet,  I  notice 
that,  upon  his  points,  and  in  his  speech,  he  a  little  prefers  to 
glide  off  from  the  name  "slaves"  to  that  of  "servants,"  and 
from  "slavery"  to  "pupilage." 

Now,  if  we  are  to  determine  whether  it  consists  with  the 
spirit  of  our  institutions,  with  the  purity  of  our  justice,  to 
tolerate  and  enforce,  at  all,  the  system  of  slavery,  let  us  see 
what  it  is. 

We  all  agree,  I  suppose,  that  slavery,  that  is,  chattel 
slavery,  the  institution  in  question,  finds  neither  origin  nor 
home  in  any  nation,  or  in  any  system  of  jurisprudence,  gov 
erned  by  the  common  law.  Among  barbarous  nations, 
without  law  or  system,  slavery  exists,  and  is  maintained  by 
mere  force.  Among  civilized  nations  it  is  the  creature  of 
the  civil  law.  From  an  elementary  book  of  acknowledged 
authority,  Taylor's  "Elements  of  the  Civil  Law"  (page  429), 
I  beg  to  read  a  concise  view  of  the  characteristic  traits  of 
this  institution.  "Slaves  were  held  pro  nullis,  pro  mortuis, 
pro  quadrupedibus."  That  is  to  say  they  were  looked 
upon  as  no  persons;  as  those  in  whom  human  personality  was 
dead;  as  beasts.  "They  had  no  head  in  the  State,  no  name, 
title  or  register;  they  were  not  capable  of  being  injured; 
nor  could  they  take  by  purchase  or  descent;  they  had  no 
heirs  and  therefore  could  make  no  will;  exclusive  of  what 
was  called  their  peculium,  whatever  they  acquired  was  their 
master's;  they  could  not  plead,  nor  be  pleaded  for,  but  were 
excluded  from  all  civil  concerns  whatever;  they  could  not 


THE  LEMMON  SLAVE  CASE  69 

claim  the  indulgence  of  absence  reipublicae  causa;  they  were 
not  entitled  to  the  rights  and  considerations  of  matrimony, 
and,  therefore,  had  no  relief  in  case  of  adultery;  nor  were 
they  proper  objects  of  cognation  or  affinity,  but  of  quasi 
cognation  only;  they  could  be  sold,  transferred  or  pawned 
as  goods  or  personal  estate,  for  goods  they  were  and  as  such 
they  were  esteemed." 

The  laws  of  the  slaveholding  States,  while  they  concur 
in  degrading  slaves  from  persons  into  things,  differ  in  the 
rules  of  conveyance  and  of  succession  pertaining  to  them  as 
property.  In  Louisiana  and  in  Kentucky  they  are  governed, 
in  these  respects,  by  the  rules  pertaining  to  real  estate.  In 
most,  if  not  all,  of  the  other  States,  they  are,  in  all  respects, 
chattels;  as,  for  instance,  in  South  Carolina,  where  the  law 
declares,  "Slaves  shall  be  deemed,  sold,  taken,  reputed,  and 
adjudged  in  law  to  be  chattels  personal  in  the  hands  of  their 
owners  and  possessors,  and  their  executors,  administrators 
and  assigns,  to  all  intents,  constructions  and  purposes  what 
soever." 

(2  Brev.  Dig.   229.     Prince's  Dig.  446.     Thompson's 

183.) 

Such,  then,  is  slavery,  the  status  now  under  consideration. 
Such  it  continues  to  be,  in  all  essential  traits,  while  it  pre 
serves  its  identity.  It  needs  positive  statutes  to  relieve 
it  materially  from  any  of  these  odious  traits,  to  raise  the 
slave  into  any  other  condition  than  that  of  being  no  person. 

When,  therefore,  we  say  that  slavery  is  "just,  benign  and 
beneficent,"  if  we  have  due  regard  to  the  appropriate  use  of 
words,  we  mean  that  that  condition,  that  relation  of  man 
to  man,  is  "just,  benign  and  beneficent." 

Horrible  it  is,  says  the  learned  counsel,  if  it  be  main 
tained  between  men  of  the  same  race — lamentable,  if  it  be 
maintained  toward  men  like  the  Indian,  for  whom  some 
sentiment  may  be  exhibited;  but  it  is  "just,  benign  and 
beneficent,"  if  applied  to  the  negro. 


70  SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

This  is  the  condition  of  slavery,  concerning  whose  toler 
ance  within  this  State  your  Honors  are  to  determine,  whether 
the  system  and  order  of  society  in  this  State  permit  you, 
as  judges  and  magistrates  to  entertain,  to  maintain,  to  en 
force  it.  I  know  of  no  reported  case,  in  which  this  true 
character  of  slavery,  in  its  just,  legal  lineaments,  is  more 
fairly  and  candidly  considered,  in  a  Slave  State,  or  in  a 
Free  State,  than  in  the  case  of  The  State  vs.  Mann, 
£d  Devereux's  Reports,  page  268. 

The  Supreme  Court  of  North  Carolina  there  gives  a  very 
careful  and  deliberate  judgment,  upon  the  essential  relations 
between  master  and  slave  as  established  by  their  laws,  as  a 
matter  of  judicial  limitation,  and  recognition.  In  deliver 
ing  the  opinion,  Judge  Ruffin,  one  of  the  ablest  judges  of 
that  State,  or  of  this  country,  was  obliged  to  say  what  the 
nature  of  slavery  was,  in  respect  to  the  right  of  the  master, 
and  the  subjection  of  the  slave.  How  this  case  arose  and  how 
necessary  it  was  to  meet  the  questions  discussed,  the  Court 
will  perceive  from  the  very  brief  narrative  which  prefaces 
the  case. 

"The  defendant  was  indicted  for  an  assault  and  battery 
upon  Lydia,  the  slave  of  one  Elizabeth  Jones.  On  the  trial 
it  appeared  that  the  defendant  had  hired  the  slave  for  a 
year — that  during  the  term  the  slave  had  committed  some 
small  offence,  for  which  the  defendant  undertook  to  chastise 
her — that  while  in  the  act  of  so  doing,  the  slave  ran  off, 
whereupon  the  defendant  called  upon  her  to  stop,  which 
being  refused,  he  shot  at  and  wounded  her. 

"His  Honor,  Judge  Daniel,  charged  the  jury,  that  if  they 
believed  the  punishment  inflicted  by  the  defendant  was 
cruel  and  unwarrantable,  and  disproportionate  to  the  offence 
committed  by  the  slave,  that  in  law  the  defendant  was 
guilty,  as  he  had  only  a  special  property  in  the  slave.  A 
verdict  was  returned  for  the  State,  and  the  defendant  ap 
pealed." 


THE  LEMMON  SLAVE  CASE  71 

Ruffin,  Judge.  "A  judge  cannot  but  lament,  when  such 
cases  as  the  present  are  brought  into  judgment. 

"It  is  impossible  that  the  reasons  on  which  they  go  can 
be  appreciated,  but  where  institutions  similar  to  our  own 
exist,  and  are  thoroughly  understood.  The  struggle,  too, 
in  the  judge's  own  breast,  between  the  feelings  of  the  man 
and  the  duty  of  the  magistrate,  is  a  severe  one,  presenting 
strong  temptation  to  put  aside  such  questions  if  it  be  pos 
sible.  It  is  useless  however  to  complain  of  things  inherent 
in  our  political  state.  And  it  is  criminal  in  a  court  to  avoid 
any  responsibility  which  the  laws  impose.  With  whatever 
reluctance  therefore  it  is  done,  the  Court  is  compelled  to 
express  an  opinion  upon  the  extent  of  the  dominion  of  the 
master  over  the  slave  in  North  Carolina. 

"The  indictment  charges  a  battery  upon  Lydia,  a  slave  of 
Elizabeth  Jones.  Upon  the  face  of  the  indictment,  the 
case  is  the  same  as  the  State  vs.  Hale,  2d  Hawks,  582.  No 
fault  is  found  with  the  rule  then  adopted;  nor  would  be,  if 
it  were  now  open.  But  it  is  not  open;  for  the  question,  as  it 
relates  to  a  battery  on  a  slave  by  a  stranger,  is  considered  as 
settled  by  that  case.  But  the  evidence  makes  this  a  dif 
ferent  case.  Here  a  slave  had  been  hired  by  the  defendant, 
and  was  in  his  possession,  and  the  battery  was  committed 
during  the  period  of  hiring. 

"With  the  liabilities  of  the  hirer  to  the  general  owner  for 
an  injury  permanently  impairing  the  value  of  the  slave, 
no  rule  now  laid  down  is  intended  to  interfere.  That  is 
left  upon  the  general  doctrine  of  bailment. 

"The  query  here  is,  whether  a  cruel  and  unreasonable 
battery  on  a  slave,  by  the  hirer,  is  indictable.  The  judge 
below  instructed  the  jury  that  it  is. 

"Upon  the  general  question,  whether  the  owner  is  an 
swerable,  criminaliter,  for  a  battery  upon  his  own  slave,  or 
other  exercise  of  authority  or  force,  not  forbidden  by  statute, 
he  Court  entertains  but  little  doubt.  That  he  is  so  liable 


72  SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

has  never  yet  been  decided;  nor,  as  far  as  is  known,  been 
hitherto  contended.  There  have  been  no  prosecutions  of 
the  sort.  The  established  habit  and  uniform  custom  of  the 
country  in  this  respect  is  the  best  evidence  of  the  portion 
of  power,  deemed  by  the  whole  community  requisite  to  the 
preservation  of  the  master's  dominion.  If  we  thought  dif 
ferently,  we  could  not  set  our  notions  in  array  against  the 
judgment  of  everybody  else,  and  say  that  this  or  that  au 
thority  may  be  safely  lopped  off.  This  has  indeed  been 
assimilated  at  the  bar  to  the  other  domestic  relations,  and 
arguments  drawn  from  the  well  established  principles  which 
confer  and  restrain  the  authority  of  the  parent  over  the 
child,  the  tutor  over  the  pupil,  the  master  over  the  ap 
prentice,  have  been  pressed  on  us.  The  Court  does  not 
recognize  their  application.  There  is  no  likeness  between 
the  cases.  They  are  in  opposition  to  each  other,  and  there 
is  an  impassable  gulf  between  them.  The  difference  is  that 
which  exists  between  freedom  and  slavery,  and  a  greater 
cannot  be  imagined.  In  the  one,  the  end  in  view  is  the 
happiness  of  the  youth,  born  to  equal  rights  with  that  gov 
ernor,  on  whom  the  duty  devolves  of  training  the  young  to 
usefulness,  in  a  station  which  he  is  afterward  to  assume 
among  freemen.  To  such  an  end,  and  with  such  an  object, 
moral  and  intellectual  instruction  seem  the  natural  means; 
and  for  the  most  part  they  are  found  to  suffice.  Moderate 
force  is  superadded  only  to  make  the  others  effectual.  If 
that  fail,  it  is  better  to  leave  the  party  to  his  own  head 
strong  passions  and  the  ultimate  correction  of  the  law,  than 
to  allow  it  to  be  immoderately  inflicted  by  a  private  person. 
With  slavery  it  is  far  otherwise.  The  end  is  the  profit  of 
the  master,  his  security  and  the  public  safety;  the  subject, 
one  doomed,  in  his  own  person  and  his  posterity,  to  live 
without  knowledge,  and  without  the  capacity  to  make  any 
thing  his  own,  and  to  toil  that  another  may  reap  the  fruits. 
What  moral  considerations  shall  be  addressed  to  such  a 


THE  LEMMON  SLAVE  CASE  73 

being,  to  convince  him  of  what  it  is  impossible  but  that  the 
most  stupid  must  feel  and  know  can  never  be  true — that 
he  is  thus  to  labor  upon  a  principle  of  natural  duty,  or  for 
the  sake  of  his  own  personal  happiness.  Such  services  can 
only  be  expected  from  one  who  has  no  will  of  his  own;  who 
surrenders  his  will  in  implicit  obedience  to  that  of  another. 
Such  obedience  is  the  consequence  only  of  uncontrolled 
authority  over  the  body.  There  is  nothing  else  which  can 
operate  to  produce  the  effect.  The  power  of  the  master 
must  be  absolute,  to  render  the  submission  of  the  slave  per 
fect.  I  most  freely  confess  my  sense  of  the  harshness  of  this 
proposition;  I  feel  it  as  deeply  as  any  man  can.  And  as  a 
principle  of  moral  right,  every  person  in  his  retirement  must 
repudiate  it.  But  in  the  actual  condition  of  things  it  must 
be  so.  There  is  no  remedy.  This  discipline  belongs  to  the 
state  of  slavery.  They  cannot  be  disunited  without  abro 
gating  at  once  the  rights  of  the  master,  and  absolving  the 
slave  from  his  subjection.  It  constitutes  the  curse  of 
slavery  to  both  the  bond  and  free  portions  of  our  population. 
But  it  is  inherent  in  the  relation  of  master  and  slave. 

"That  there  may  be  particular  instances  of  cruelty  and 
barbarity,  where  in  conscience  the  law  might  properly  inter 
fere,  is  most  probable.  The  difficulty  is  to  determine  where 
a  court  may  properly  begin.  Merely  in  the  abstract  it  may 
well  be  asked,  which  power  of  the  master  accords  with  right. 
The  answer  will  probably  sweep  away  all  of  them.  But 
we  cannot  look  at  the  master  in  that  light.  The  truth  is, 
that  we  are  forbidden  to  enter  upon  a  chain  of  general  rea 
soning  on  the  subject.  We  cannot  allow  the  right  of  the 
master  to  be  brought  into  discussion  in  the  courts  of  justice. 
The  slave,  to  remain  a  slave,  must  be  made  sensible  that 
there  is  no  appeal  from  his  master;  that  his  power  is  in  no 
instance  usurped;  but  is  conferred  by  the  laws  of  man,  at 
least,  if  not  by  the  laws  of  God. 

"I  repeat  that  I  would  gladly  have  avoided  this  ungrateful 


74  SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

question.  But  being  brought  to  it,  the  Court  is  compelled 
to  declare,  that  while  slavery  exists  amongst  us  in  its  present 
state,  or  until  it  shall  seem  fit  to  the  Legislature  to  interpose 
express  enactments  to  the  contrary,  it  will  be  the  imperative 
duty  of  the  judges  to  recognize  the  full  dominion  of  the 
owner  over  the  slave,  except  where  the  exercise  of  it  is  for 
bidden  by  statute.  And  this  we  do  upon  the  ground,  that 
this  dominion  is  essential  to  the  value  of  slaves  as  property, 
to  the  security  of  the  master  and  the  public  tranquility, 
greatly  dependent  upon  their  subordination,  and  in  fine,  as 
most  effectually  securing  the  general  protection  and  com 
fort  of  the  slaves  themselves. 

"Per  Curiam.  Let  the  judgment  below  be  reversed  and 
judgment  entered  for  the  defendant." 

Now,  this  is  a  very  gloomy  view  of  slavery.  It  is  how 
ever  the  only  view  that  is  permissible  of  this  institution,  as 
a  matter  of  legal  power  and  legal  subjection  between  the 
parties  to  it,  and  it  comes  precisely  to  this,  that  the  slave, 
before  the  law,  has  no  rights  at  all,  no  more  than  any  mere 
thing,  that,  by  the  law  of  nature,  is  subject  to  the  dominion 
of  man.  If,  indeed,  the  slave  be  cruelly  injured,  as  matter 
of  his  master's  property,  then  an  action  for  damages  will  lie, 
governed,  as  the  Court  says,  by  the  "law  of  bailment." 
If  the  State  as  matter  of  public  policy,  chooses  to  make  acts 
committed  in  respect  to  the  slave,  criminal,  it  may  do  so, 
just  as  it  may  acts  of  malicious  mischief  in  respect  of  an  in 
animate  substance;  as  it  may  protect  trees  planted  in  the 
highway  against  depredation  or  injury,  or  as  it  may  pro 
tect  public  grounds  from  intrusion  or  defilement.  In  such 
cases  an  indictment  under  the  statute  will  lie,  because  the 
State  has  so  declared.  But  there  is  no  recognition  or  com 
prehension  of  the  slave,  as  respects  rights  or  remedies  for  him 
self,  within  any  of  the  moral,  social  and  human  relations 
that  govern  duties  or  rights  between  person  and  person. 
When,  therefore,  we  are  asked  to  be  hospitable  in  feeling,  in 


THE  LEMMON  SLAVE  CASE  75 

speech,  or  in  law,  to  slavery  we  must  take  it  as  it  is,  and  with 
the  traits  which  are  inseparable  from  it,  and  which,  as  the 
Court,  in  the  case  cited,  say,  cannot  be  abrogated  without 
destroying  the  relation  between  master  and  slave,  for  they 
exist  in  the  relation  itself. 

Now,  I  say,  that  all  history  and  all  jurisprudence  show 
that  slavery  originated  in  the  mere  predominance  of  physical 
force  of  one  man  over  another.  That,  I  take  it,  must  be 
conceded.  It  is  equally  indisputable  that  it  is  continued 
by  mere  predominance  of  physical  force,  or  of  social  force, 
in  the  shape  of  municipal  law.  Whenever  this  force  fails 
at  any  stage,  then  the  status  falls,  for  it  has  nothing  to  rest 
upon.  When  the  stranger  comes  within  our  territory,  and 
seeks  to  retain  in  slavery  a  person  that  he  claims  to  be  subject 
to  his  dominion,  he  must  either  rely  upon  his  own  personal 
force,  or  he  must  appeal  to  some  municipal  law,  which  sus 
tains  that  relation  by  the  pressure  of  its  force.  When  such 
a  claim  is  made  in  this  State,  our  answer  is  that  he  has 
brought  with  him  no  system  of  municipal  law,  to  be  a  weapon 
and  a  shield  to  this  status,  and  he  finds  no  such  system  here. 
Where  does  he  find  it?  We  have  no  such  system.  We  know 
of  no  such  relations.  His  appeal  to  force  against  nature,  to 
law  against  justice,  to  might  against  right,  is  vain,  and  his 
captive  is  free. 

In  Neal  vs.  Farmer  (9  Georgia  Reports,  page  555),  the 
Court  will  find  a  distinct  adoption  of  this  view,  that  the 
title  of  the  slave-owner  to  his  slave  is  of  the  kind  that  I  have 
stated,  derived  from,  and  maintained  by,  force.  Indeed, 
that  the  planter's  title  is  but  the  title  of  the  original  captor. 
The  action  was  brought  by  Nancy  Farmer  against  William 
Neal  to  recover  damages  for  the  killing  of  a  negro  slave, 
the  property  of  Mrs.  Farmer.  On  the  trial,  the  plaintiff 
proved  the  killing  and  closed.  The  jury  found  a  verdict  for 
plaintiff  for  $825.  An  objection  was  made  to  the  legality  of 
the  verdict  on  the  ground  that,  in  cases  of  felony  the  civil 


76  SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

remedy  is  suspended  until  the  offender  is  prosecuted  to 
conviction  or  acquittal.  This  principle  was  admitted,  but 
the  Court  below  held  that  the  killing  of  a  slave  was  not  a 
felony  at  common  law,  and  refused  a  new  trial.  The  ques 
tion  of  law  was  brought  before  the  Supreme  Court  by  writ 
of  error. 

The  Court  held,  "In  cases  of  felony,  the  civil  remedy  is 
suspended  until  the  offender  is  prosecuted  to  conviction  or 
acquittal.  It  is  not  felony  in  Georgia,  by  the  common  law, 
to  kill  a  slave,  and  the  only  legal  restraint  upon  the  power 
of  a  master  over  the  person  of  the  slave  in  Georgia,  is  such  as  is 
imposed  by  statute.'9 

At  page  580  of  the  report,  the  learned  Court  proceeds: 
"Licensed  to  hold  slave  property,  the  Georgia  planter  held 
the  slave  as  a  chattel;  and  whence  did  he  derive  title? 
Either  directly  from  the  slave  trader,  or  from  those  who 
held  under  him,  and  he  from  the  slave  captor  in  Africa. 
The  property  in  the  slave  of  the  planter,  became,  thus, 
just  the  property  of  the  original  captor.  In  the  absence  of 
any  statutory  limitation  on  that  property  he  holds  it  as  un 
qualifiedly  as  the  first  proprietor  held  it,  and  his  title  and 
the  extent  of  his  property  were  sanctioned  by  the  usage  of 
nations  which  had  grown  into  a  law. 

"There  is  no  sensible  account  to  be  given  of  property  in 
slaves  here  but  this.  What  were  then  the  rights  of  the 
African  Chief  in  the  slave  which  he  had  captured  in  war? 
The  slave  was  his  to  sell,  or  to  give,  or  to  kill. " 

The  law  of  nations  built  upon  the  law  of  nature,  has 
adopted  this  same  view  of  the  status  of  slavery,  as  resting  on 
force  against  right,  and  finding  no  support  outside  of  the 
jurisdiction  of  the  municipal  law  which  establishes  it. 

Now  it  is  very  easy  to  say,  as  is  said  by  the  learned  counsel 
in  his  points,  that  we  are  not  justified  in  prohibiting  the 
slave-owner  from  any  State  of  the  Union,  from  bringing 
his  slaves  hither,  and  it  may  be  urged  that  there  is  no  disturb- 


THE  LEMMON  SLAVE  CASE  77 

ance  of  our  public  peace,  and  no  encroachment  upon  the 
public  morals,  or  upon  social  and  political  principles  of  this 
community,  in  allowing  the  slave-owner  to  bring  his  slaves 
hither,  in  allowing  them  to  remain  here,  and  in  allowing  him 
to  take  them  away. 

But  this  is  not  a  correct  statement  of  the  proposition.  It 
is  not  a  question  of  the  officious  interference  of  our  law  with 
the  agreeing  dispositions  of  the  master  and  his  slaves  for  the 
maintenance  of  the  relation.  The  question  in  form  and 
substance  is,  what  is  the  duty  of  our  law,  what  its  authority, 
what  are  its  powers  and  processes,  what  the  means  and  the 
principles  of  enforcing  it,  in  case  this  amicable  agreement  be 
tween  master  and  slave  shall,  at  any  point  of  the  contin 
uance  of  the  status  in  our  community,  cease.  This  was  the 
point  with  Lord  Mansfield  in  the  case  of  Sommersett.  Lord 
Mansfield,  if  he  has  been  sainted  by  philanthropists,  as  the 
learned  counsel  has  said,  for  his  devotion  to  liberty,  as 
exhibited  in  the  case  of  Sommersett,  very  little  deserves 
such  peculiar  veneration.  Lord  Mansfield  tried  as  hard  as 
a  judge  ever  did  to  avoid  deciding  that  case;  he  was  held  as 
firmly  by  habit,  by  education,  by  principle,  by  all  his  rela 
tions  with  society,  to  what  would  be  called,  in  the  phrase  of 
our  day,  a  conservative  and  property  view  of  the  subject,  as 
any  man  could  be.  It  is  amusing  to  follow  the  report  in  the 
State  Trials,  and  see  how  the  argument  was  postponed, 
from  time  to  time,  on  a  suggestion  thrown  out  by  the  Court, 
of  the  immense  influence  on  property  that  the  decision  in 
the  particular  case  would  have.  If  your  Honors  please,  at 
the  time  the  point  was  raised  before  Lord  Mansfield,  there 
were  within  the  realm  of  England  fourteen  thousand  slaves, 
brought  from  the  plantations  and  held,  without  a  suspicion 
of  their  right  by  their  masters,  under  the  professional  opinions 
of  the  eminent  lawyers,  Sir  Charles  York  and  Lord  Talbot, 
that  the  Virginia  negro  might  be  lawfully  held  as  a  slave 
within  the  realm  of  England.  But,  notwithstanding  all  the 


78  SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

suggestions  of  the  Court,  for  some  reason  or  other,  it  was 
not  thought  useful  or  proper  to  cover  up,  or  to  buy  up  this 
question  of  personal  liberty  on  English  soil  and  under  Eng 
lish  law.  Then,  Lord  Mansfield,  being  as  my  learned  friend 
has  suggested,  a  mere  common  law  judge  in  a  mere  common 
law  court,  being  the  Chief  Justice  of  England,  a  great  magis 
trate,  the  head  of  the  Court  to  which  was  committed  the 
care  and  protection  of  the  personal  rights  of  the  community, 
as  established  and  regulated  and  defended  by  the  law  of  the 
realm,  was  obliged,  by  the  mere  compulsion  of  his  reason,  to 
decide  that  case  as  he  did.  There  is  no  poetry,  no  sentiment, 
no  philanthropy,  no  zeal,  no  desire  to  become  a  subject  of 
saint-hood  with  future  generations,  to  be  found  in  his  deci 
sion.  Not  one  word  of  any  of  these.  It  was  extorted  in 
submission  to  the  great  powers  of  his  own  reason.  He  says, 
most  truly,  that  the  difficulty  is,  that  if  slavery  be  intro 
duced  and  sustained  at  all,  it  must  be  introduced  and 
sustained  according  to  its  length  and  breadth,  with  all  its 
incidents  and  results,  and  if  our  law  recognizes  it,  then  we 
must  adopt  and  administer  some  system  of  positive  mun 
icipal  law,  external  to  our  own,  for  we  have  no  such 
domestic  status  in  our  own  society.  Therefore,  says  Lord 
Mansfield,  if  the  merchants  will  not  settle  this  case,  if  no 
appeal  to  Parliament  for  legislation  on  the  subject  will  be 
made,  and  if  I  must  decide  it,  I  do  not  know  of  any  law  of 
England  which  permits  the  master  of  this  vessel,  on  which 
the  slave  Sommersett  is  embarked,  to  hold  him  in  confine 
ment,  and  he  must  be  set  free.  And  the  Court  below  was 
asked  to  say  in  this  State,  "does  the  law  of  New  York  furnish 
any  ground  and  authority  by  which  it  can  permit,  or  sustain, 
or  enforce  the  restraint  upon  the  liberty  of  these  Virginia 
negroes,  in  the  city  of  New  York,  practiced  by  this  man  and 
woman,  Mr.  and  Mrs.  Lemmon?" 

Now,  it  will  readily  be  seen,  as  suggested  (under  subdivi 
sion  D  of  my  third  point),  that  this  consequence  must  follow; 


THE  LEMMON  SLAVE  CASE  79 

for  the  idea  that  our  law  can  have  a  mere  let  alone  policy, 
can  leave  these  people  to  manage  the  affair  among  them 
selves,  is  precluded  the  moment  the  process  of  Habeas  Cor 
pus  has  brought  them  within  the  control  of  the  magistrate. 
Certainly,  we  have  no  law  to  prohibit  the  master  and  mis 
tress  from  coming  here  with  their  faithful  servants,  from  re 
maining  here  peaceably  under  this  tie  of  fidelity,  and  leaving 
here  under  the  same  tie  of  fidelity. 

If  there  is  no  writ  of  Habeas  Corpus  sued  out,  if  no  action 
of  false  imprisonment  is  brought,  no  complaint  for  assault 
and  battery  is  made,  and  nothing  comes  up  for  judicial  in 
quiry,  then  this  contented  "pupilage" — this  relation  of 
"honorable  slaveholder  to  devoted  and  attached  slaves"  is 
not  interfered  with  by  us.  When  liberty  was  awarded  to 
these  eight  persons  they  were  not  prohibited  from  going  back 
to  No.  8  Carlisle  street,  to  the  dominion  of  the  Lemmons,  or 
from  embarking  on  a  steamship  for  a  voyage  to  Texas.  All 
the  judgment  declares  is,  that,  if  you  are  restrained  by  force, 
and  against  y OUT  will,  there  is  no  such  restraint  allowed  by  law. 

The  question  is,  as  Lord  Mansfield  says,  what  the  law 
shall  do,  when  its  force  and  authority  are  invoked.  It  is 
the  same  practical  difficulty  that  arose  under  Dogberry's 
instructions  to  the  watch:  "This  is  your  charge;  you  shall 
comprehend  all  vagrom  men.  '  You  are  to  bid  any  man  stand, 
in  the  prince's  name. "  "How, "  inquires  the  watch  not  im 
pertinently,  "how,  if  he  will  not  stand?"  Dogberry  bravely 
meets  the  emergency.  "Why,  then  take  no  note  of  him, 
but  let  him  go;  and  presently  call  the  rest  of  the  watch  to 
gether,  and  thank  God  you  are  rid  of  a  knave."  Whoever, 
in  the  name  of  our  law,  undertakes  to  maintain  a  slave's 
subjection,  will  find  no  wiser  counsel  than  Dogberry's  to 
follow,  if  the  slave  objects  to  his  authority. 

The  train  of  consequences  which  must  follow  from  the 
recognition  of  slavery  by  our  law,  as  a  status  within  our 
territory,  I  have  illustrated  by  a  few  instances  or  examples, 


80  SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

under  subdivision  D  of  my  third  point.  I  will  not  enlarge 
upon  them.  Certainly  I  take  no  pleasure  in  repeating  them 
for  any  purposes  of  sarcasm  or  invective. 

I  pass  now  to  a  subject,  considered  in  distinct  propositions 
upon  my  points,  and  concerning  which  the  course  of  my 
learned  friend's  argument  requires  a  few  observations  from 
me.  I  refer  to  the  proposition,  that  the  rule  of  comity 
which  permits  the  transit  of  strangers  and  their  property 
through  a  friendly  State,  does  not  require  our  laws  to  uphold 
the  relation  of  slave-owner  and  slave,  within  our  State,  be 
tween  strangers.  By  that  general  system  of  jurisprudence 
made  up  of  certain  principles  held  in  common  by  all  civil 
ized  States,  known  as  the  "Law  of  Nations,"  in  one  of  the 
senses  in  which  the  term  is  used  by  publicists,  men  are  not 
the  subject  of  property.  This  proposition  the  learned 
counsel  has  met  by  the  argument,  that  property  does  not 
exist,  at  all,  by  the  law  of  nature,  but  is  wholly  the  growth  of 
civil  society  and  the  creature  of  positive  or  municipal  law. 
If  he  means  by  this  argument,  that  the  title  of  an  individual 
to  a  particular  item  or  subject  of  property,  is  not  completely 
ascertained  or  established  by  the  law  of  nature;  that  I  do 
not  make  title  to  the  house  in  which  I  live,  or  the  books  which 
I  read,  by  the  law  of  nature,  I  have  no  dispute  with  him. 
But,  if  he  means,  that  the  distinction  between  man  as  the 
owner,  and  things  as  the  subjects,  of  property,  does  not  arise 
by  the  law  of  nature,  he  is,  I  think,  entirely  in  error.  I 
suppose  that  the  relation  of  man,  as  Lord  over  all  ranks  of  the 
brute  creation  and  all  inanimate  things  in  this  world,  is 
derived  from  nature,  as  by  direct  grant  from  the  Almighty 
Creator  of  the  world  and  all  things  therein;  that  by  this 
law,  the  relations  of  persons  to  things,  which  is  but  another 
name  for  the  institution  of  property,  is  a  natural  relation. 
If  it  is  not  a  natural  relation — if  it  does  not  spring  out  of  the 
creation  of  man,  and  his  being  placed  on  this  earth  by  his 
Maker,  I  do  not  understand  its  origin. 


THE  LEMMON  SLAVE  CASE  81 

When  we  accord  to  strangers  a  transit  through  out  terri 
tory,  with  property,  we  limit  that  right  to  what  is  the  sub 
ject  of  property  by  the  law  of  nature,  unless  our  municipal 
law  recognizes  property  other  than  such  as  the  law  of  nature 
embraces. 

But  further,  the  learned  counsel  has  argued,  that,  because 
we  recognize,  under  the  general  principles  of  comity,  certain 
rights  that  grow  out  of  the  condition  of  slavery,  under  the 
foreign  municipal  system,  which  accredits  and  supports  it, 
we  are  involved  in  the  obligation  of  not  imputing  immorality 
to  that  relation,  and,  that,  upon  the  same  reasons  or  induce 
ments  of  comity,  by  which  we  recognize  these  rights  thus 
grown  up,  we  must  enforce  and  maintain  the  condition  itself 
in  our  own  municipal  system.  If  the  Court  please,  we 
ought  not  to  be  called  upon  to  confound  propositions  nat 
urally  so  distinct  as  these,  and  which,  I  respectfully  submit, 
are  justly  discriminated  upon  my  printed  brief,  under  sub 
division  F  of  the  third  point.  We  recognize,  unquestion 
ably,  the  establishment  of  slavery  in  Virginia  as  the  lawful 
origin  of  certain  rights,  and  open  our  Courts  to  the  main 
tenance  and  enforcement  of  those  rights.  As  the  learned 
counsel  has  said,  if  upon  the  sale  of  a  slave  in  Virginia  a 
promissory  note  be  taken  by  the  vendor,  and  suit  brought 
upon  it  in  our  Courts,  the  action  would  be  sustained;  the 
security  would  not  be  avoided  as  founded  upon  an  immoral 
or  illegal  consideration.  Nay,  further  than  that.  Suppose 
the  relation  of  master  and  slave,  once  lawfully  subsisting  in 
Virginia,  to  have  ceased  and  the  slave  to  have  become  free* 
by  manumission,  or  otherwise;  suppose  the  freedman  to 
have  become  an  inhabitant  of  our  State,  and  finding  his 
master  accessible  to  process  here,  to  have  sued  him  for  wages, 
for  the  service  in  Virginia,  while  a  slave,  alleging  that  he  had 
performed  labor  and  had  been  paid  nothing  for  it.  By  our 
law  no  such  action  would  lie.  No  debt  accrued  by  the  law 
of  Virginia,  and  that  law  must  give  the  right,  before  our  law 


82          SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

can  afford  a  remedy.  We  might  suppose  the  relation  to  have 
terminated  advantageously  to  the  master,  the  slave  having 
been  a  charge  and  burden  upon  the  master  beyond  any  serv 
ice  he  could  render.  The  slave,  become  free,  and  found 
here  in  the  possession  of  property,  could  the  master  sue  him 
here  for  his  support,  during  the  time  that,  without  being 
remunerated  by  his  labor,  he  had  maintained,  fed,  clothed 
and  cared  for  him?  Certainly,  no  such  action  could  be  sus 
tained.  Apply  these  principles  to  the  ordinary  domestic 
relations,  and  there  is  no  mystery  in  this  distinction.  We 
recognize  a  foreign  marriage,  good,  according  to  the  laws 
of  the  community  in  which  it  is  celebrated,  as  giving  title  to 
property  here,  in  this  State,  real  or  personal,  dependent  upon 
that  relation.  When  a  husband  and  wife,  united  under  a  for 
eign  marriage,  come  here,  we  recognize  their  relation  as  hus 
band  and  wife,  with  such  traits  and  consequences  as  accord 
with  our  laws.  But  suppose  a  man  to  have  married  a  wife 
in  Massachusetts,  and  that  by  the  law  of  Massachusetts, 
while  the  parties  continue  there,  the  husband  has  the  sup 
posed  common  law  right  to  beat  his  wife  with  a  stick  no 
bigger  than  his  thumb;  suppose  this  a  trait  of  the  con 
jugal  relation,  a  marital  right  in  Massachusetts.  Now,  the 
claim  of  the  learned  counsel  is,  not  only  that  we  should  ac 
cord  to  the  relation  of  marriage  arising  under  the  law  of 
Massachusetts,  consequences  in  respect  of  property  here, 
which  belong  to  the  relation,  but,  that,  when  husband  and 
wife  come  here,  as  residents  or,  at  least,  in  transitu,  we  should 
allow  this  special  marital  right  to  continue,  and  be  exercised 
under  our  law  here,  although  unlawful  between  husband 
and  wife  by  our  laws.  The  absurdity  of  such  a  claim  strikes 
everyone.  If  the  husband  pleaded,  as  a  defence  against 
punishment  here,  that  by  the  law  of  Massachusetts,  where 
the  marriage  was  instituted,  the  violent  acts  were  permitted, 
no  Court  would  tolerate  so  idle  and  frivolous  a  suggestion. 
The  relation  of  master  and  apprentice  presents  a  nearer 


THE  LEMMON  SLAVE  CASE  83 

analogy  to  that  of  slavery  than  any  civil  relation  now  rec 
ognized  by  our  law.  It  is  wholly  the  creature  of  positive 
statute,  and  we  take  no  notice  whatever  of  the  relation,  of 
the  same  name  and  substance,  established  by  the  laws  of  the 
other  States  of  the  Union,  as  giving  any  personal  status  within 
our  territory.  A  master  and  his  apprentice  coming  here 
from  Connecticut,  in  the  judgment  of  our  law,  no  longer 
hold  that  relation  to  each  other.  Our  law  furnishes  no  aid 
to  the  master's  authority,  no  compulsion  upon  the  appren 
tice's  obedience. 

The  learned  counsel,  in  his  plea  for  your  indulgence  to 
the  institution  of  chattel  slavery,  has  thought  to  disparage 
the  great  names  in  the  British  judiciary  which  have  pro 
scribed  that  condition  as  unworthy  to  be  tolerated  by  their 
laws,  by  holding  up  to  odium  the  system  of  white  slavery, 
which,  under  the  name  of  villenage,  long  ago  subsisted  in 
England. 

However  nearly  the  traits  of  this  servitude  may,  at  one 
time  or  another,  have  resembled  the  system  of  slavery 
which  finds  support  and  favor  in  parts  of  our  country, 
there  was  always  this  feature  of  hope  and  promise  of  the 
amelioration  and  final  extirpation  of  villenage,  which  will  be 
sought  in  vain  in  the  system  of  slavery  in  our  States.  Vil 
lenage  was  within  the  comprehension  and  subject  always 
to  the  influences  of  the  common  law,  which,  indeed,  is  but 
another  name  for  common  right  and  general  justice.  No 
system  of  injustice  and  of  force  brought  within  the  grasp  of 
the  principles  of  the  common  law,  but  must,  sooner  or  later, 
be  vanquished  and  exterminated.  The  heaviest  gloom  which 
rests  upon  the  system  of  chattel  slavery  comes  from  this 
very  fact,  that  it  is  outlawed  from  all  these  influences;  that 
reason  and  justice,  duty  and  right,  as  they  reject  it,  are  re 
jected  by  it,  and  find  no  inlet  through  the  proof  armor  of 
force  and  interest  in  which  it  is  cased. 

The  learned  counsel  has  remarked  upon  the  silent  and 


84  SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

gradual  retreat  of  villenage  before  the  growing  power  of 
justice  and  civilization,  till  it  finally  disappears  from  Eng 
lish  history,  one  scarcely  knows  when.  It  wore  out,  he  says, 
without  bloodshed,  without  violence,  without  civil  or  social 
disturbance  or  disquiet.  It  is  not  strictly  true  that  villenage 
was  never  the  cause  of  serious  civil  disorder  in  England. 
Jack  Cade's  rebellion  and  Wat  Tyler's  insurrection  were, 
really,  servile  insurrections  to  which  intolerable  oppression 
had  urged  this  abject  class.  But  be  this  as  it  may,  the 
learned  counsel's  complacency,  first  in  the  long  endurance 
of  villenage,  and,  second,  in  its  peaceful  abrogation,  has  not 
restrained  him  from  a  sarcastic  suggestion,  that  if  there  had 
been  in  England  "a  sect  of  abolitionists"  hostile  to  villenage, 
that  system  would  have  survived  to  our  day.  If  the  ten 
dency  and  effect  of  the  teaching  of  this  "sect  of  abolitionists " 
be,  indeed,  to  confirm  and  perpetuate  the  system  of  slavery, 
it  should  attract  the  favor  rather  than  the  wrath  of  one,  who, 
like  my  learned  friend,  thinks  slavery  to  be  "just,  benign, 
beneficent,  not  inconsistent  with  strict  justice,  and  pure 
benevolence." 

But  I  can  relieve  the  learned  counsel  from  any  doubt  or 
uncertainty  as  to  the  efficient  influences  which  caused  the 
decay  and  final  extinction  of  villenage  in  England.  They 
were  the  common  law  and  the  Christian  religion. 

The  common  law,  having,  as  I  stated,  comprehended  villen 
age  within  its  principles  and  processes,  showed  it  no  quarter, 
but  by  every  act  and  contrivance  reduced  it  to  narrower  and 
narrower  limits.  It  admitted  no  intendments  in  its  favor, 
gave  every  presumption  against  it;  knew  no  mode  to  make 
a  villein  of  a  freeman,  a  hundred  to  convert  a  villein  into  a 
freeman.  Mr.  Hargreave,  in  his  celebrated  argument  in 
Sommersett's  case,  gives  a  just  account  of  these  successful 
efforts  of  the  common  law.  "Another  cause,"  says  this 
eminent  lawyer,  "which  greatly  contributed  to  the  extinc 
tion  of  villenage,  was  the  discouragement  of  it  by  courts 


THE  LEMMON  SLAVE  CASE  85 

of  justice.  They  always  presumed  in  favor  of  liberty, 
throwing  the  'onus  probandi '  upon  the  lord,  as  well  in  the 
writ  of  Homine  Replegiando,  where  the  villein  was  plaintiff, 
as  in  the  Nativo  Habendo,  where  he  was  defendant.  Non 
suit  of  the  lord  after  appearance  in  the  Nativo  Habendo, 
which  was  the  writ  for  asserting  the  title  of  slavery,  was  a 
bar  to  another  Nativo  Habendo,  and  a  perpetual  enfranchise 
ment;  but  nonsuit  of  the  villein  after  appearance  in  a 
Libertate  Probanda,  which  was  one  of  the  writs  for  asserting 
the  claim  of  liberty  against  the  lord,  was  no  bar  to  another 
writ  of  the  like  kind.  If  two  plaintiffs  joined  in  a  Nativo 
Habendo,  nonsuit  of  one  was  a  nonsuit  of  both;  but  it  was 
otherwise  in  a  Libertate  Probanda.  The  lord  could  not 
prosecute  for  more  than  two  villeins  in  one  Nativo  Habendo ; 
but  any  number  of  villeins  of  the  same  blood  might  join 
in  one  Libertate  Probanda.  Manumissions  were  inferred 
from  the  slightest  circumstances  of  mistake  or  negligence  in 
the  lord,  from  every  act  or  omission  which  legal  refinement 
could  strain  into  an  acknowledgment  of  the  villein's  liberty. 
If  the  lord  vested  the  ownership  of  lands  in  the  villein, 
received  homage  from  him,  or  gave  a  bond  to  him,  he  was 
enfranchised.  Suffering  the  villein  to  be  on  a  jury,  to  enter 
into  religion  and  be  professed  or  to  stay  a  year  and  a  day 
in  ancient  demesne  without  claim,  were  enfranchisements. 
Bringing  ordinary  actions  against  him,  joining  with  him  in 
actions,  answering  to  his  action  without  protestation  of 
villenage,  imparling  in  them  or  assenting  to  his  imparlance, 
or  suffering  him  to  be  vouched  without  counter-pleading  the 
voucher,  were  also  enfranchisements  by  implication  of  law. 
Most  of  the  constructive  manumissions  I  have  mentioned 
were  the  received  law,  even  in  the  reign  of  the  first  Edward. 
I  have  been  the  more  particular  in  enumerating  these  instances 
of  extraordinary  favor  to  liberty,  because  the  anxiety  of  our 
ancestors  to  emancipate  the  ancient  villeins  so  well  accounts 
for  the  establishment  of  any  rules  of  law  calculated  to  obstruct 


86          SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

the  introduction  of  a  new  stock.  It  was  natural,  that  the  same 
opinions,  which  influenced  to  discountenance  the  former, 
should  lead  to  the  prevention  of  the  latter. " 

The  other  operative  agency  in  the  gradual  extinction  of  the 
offensive  system  of  villenage  was  the  influence  of  the  Christian 
religion,  under  the  auspices  of  the  church  of  Rome,  then,  as 
well,  the  national  church  of  England.  Macaulay  thus  ascribes 
the  chief  merit  in  this  beneficent  social  reform  to  the  Romish 
priesthood.  "It  is  remarkable  that  the  two  greatest  and 
most  salutary  social  revolutions  which  have  taken  place  in 
England,  that  revolution,  which,  in  the  thirteenth  century, 
put  an  end  to  the  tyranny  of  nation  over  nation,  and  that 
revolution  which,  a  few  generations  later,  put  an  end  to  the 
property  of  man  in  man,  were  silently  and  imperceptibly 
effected.  They  struck  contemporary  observers  with  no  sur 
prise,  and  have  received  from  historians  a  very  scanty  meas 
ure  of  attention.  They  were  brought  about  neither  by 
legislative  regulation  nor  by  physical  force.  Moral  causes 
noiselessly  effaced,  first  the  distinction  between  Norman 
and  Saxon,  and  then  the  distinction  between  master  and 
slave.  None  can  venture  to  fix  the  precise  moment  at 
which  either  distinction  ceased.  Some  faint  traces  of  the 
old  Norman  feeling  might  perhaps  have  been  found  late  in 
the  fourteenth  century.  Some  faint  traces  of  the  institu 
tion  of  villenage  were  detected  by  the  curious  so  late  as  the 
days  of  the  Stuarts;  nor  has  that  institution  ever,  to  this 
hour,  been  abolished  by  statute. 

"It  would  be  most  unjust  not  to  acknowledge  that  the 
chief  agent  in  these  two  deliverances  was  religion ;  and  it  may, 
perhaps,  be  doubted  whether  a  purer  religion  might  not  have 
been  found  a  less  efficient  agent.  The  benevolent  spirit  of 
the  Christian  morality  is  undoubtedly  adverse  to  distinc 
tions  of  caste.  But  to  the  church  of  Rome  such  distinctions 
are  peculiarly  odious,  for  they  are  incompatible  with  other 
distinctions  which  are  essential  to  her  system."  "How 


THE  LEMMON  SLAVE  CASE  87 

great  a  part  the  Catholic  ecclesiastics  had  in  the  abolition 
of  villenage,  we  learn  from  the  unexceptionable  testimony 
of  Sir  Thomas  Smith,  one  of  the  ablest  counsellors  of  Eliza 
beth.  When  the  dying  slaveholder  asked  for  the  last  sacra 
ments,  his  spiritual  attendants  regularly  adjured  him,  as  he 
loved  his  soul,  to  emancipate  his  brethren,  for  whom  Christ 
had  died.  So  successfully  had  the  church  used  her  formid 
able  machinery,  that  before  the  Reformation  came,  she  had 
enfranchised  almost  all  the  bondmen  in  the  kingdom,  except 
her  own,  who,  to  do  her  justice,  seem  to  have  been  very  ten 
derly  treated."  (Hist.  Eng.,  vol.  1,  pp.  20,  21.) 

These  influences,  then,  of  law  and  of  religion  were  the 
efficient  agents  in  extirpating  villenage,  a  civil  condition 
which,  so  long  as  it  subsisted,  was  a  reproach  to  the  liberty 
of  England,  and  to  the  principles  of  the  common  law.  Why 
should  the  learned  counsel  hope  to  heap  opprobrium  upon 
these  principles  of  justice  and  religion,  when  invoked  in  favor 
of  an  inferior  race,  and  against  a  system  of  slavery  so  much 
more  oppressive  than  the  system  of  villenage,  because  our 
people  who  have  espoused  and  maintain  views  opposed  to 
this  present  system  of  wrong  against  right,  and  force  against 
justice  and  nature,  are  the  offspring  of  the  British  nation, 
which,  in  the  early  stages  of  its  civilization,  had  such  a  sys 
tem,  or  a  similar  system?  If  these,  our  ancestors,  and  we 
had  nourished  and  developed  it,  if  we  had  extended  it,  if 
we  had  made  it  the  basis  of  prosperity  in  England  and  this 
country,  if  we  had  boasted  its  justice  and  benevolence,  if  we 
had  extended  it  so  as  to  embrace  more  and  more  of  the 
nation,  if  we  had  made  the  law  astute  and  even  violent  to 
support  and  maintain  it,  if  we  had  discouraged  every  in- 
tendment  against  it,  and  if  it  was  now  approved  and  ap 
plauded  as  an  institution  which  the  civilization  and  Chris 
tianity  of  the  present  day  accept,  then  we  might  well  be 
accused  of  inconsistency,  in  being  hostile  to  chattel  slavery 
in  the  negro  race.  But,  it  seems  to  me,  that  the  influences 


88  SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

of  the  common  law  of  England,  which  we  inherit,  and  of  the 
Christian  religion,  as  vindicated  in  the  absolute  extirpation 
of  villenage  from  the  social  system  of  England,  by  peaceful 
means,  will  suffer  no  dishonor  by  performing  the  same  serv 
ice,  and  impressing  upon  the  judiciary  of  this  State  the 
same  principles  of  absolute  inhospitality  to  negro  slavery 
within  our  borders,  even  for  the  briefest  period,  or  over  the 
most  narrow  space. 

If  the  Court  please,  the  judgment  below,  the  reasons  for 
which  are  very  tersely  and  properly  expressed  by  the  Court 
which  pronounced  it,  is  either  to  be  affirmed  or  reversed. 
You  are  to  declare  the  law  of  this  State.  If  you  declare  that 
slavery  may  be  introduced  here,  there  is  no  appeal  from 
your  decision.  If  you  hold  that  it  may  not  be  introduced 
here,  and  affirm  the  judgment  of  the  Court  below,  an  appeal 
may  carry  the  question  to  the  Supreme  Court  of  the  United 
States.  That  such  appeal  must  be  dismissed  by  that  Supreme 
tribunal,  for  want  of  jurisdiction  of  the  subject,  I  confidently 
submit,  must  follow  from  the  authorities  and  the  principles  I 
have  had  the  honor  to  present  to  this  Court. 

The  result  of  your  judgment  cannot  be  doubtful,  if  I 
am  right  in  the  opinion  that  it  is  constrained  by  no  para 
mount  control  of  Federal  power.  It  is  as  true  now,  as  in 
the  time  of  Littleton  and  of  Coke,  that  he  shall  be  adjudged 
guilty  of  impiety  toward  God  and  of  cruelty  toward  man, 
who  does  not  favor  liberty;  and  what  they,  in  their  day, 
declared  of  the  law  of  England,  your  decision  shall  pronounce 
as  the  law  of  New  York,  that,  IN  EVERY  CASE,  it  shows 
favor  to  liberty. 

I  have,  your  Honors  will  bear  witness,  confined  myself  in 
this  discussion,  to  mere  juridical  inquiries,  and  have  strictly 
abstained  from  any  mention  of  popular  or  political  consid 
erations.  I  should  not,  now,  think  myself  justified  in  any 
allusions  to  those  considerations,  but  for  the  very  distinct 
suggestion  of  the  learned  counsel,  that  there  was  a  momentous 


THE  LEMMON  SLAVE  CASE  89 

pressure  upon  the  freedom  of  your  judgments  in  this  matter, 
growing  out  of  a  certain  formidable,  and  yet,  as  he  thought, 
inevitable,  result  to  follow  from  a  decision  of  this  question, 
adversely  to  the  views  he  has  had  occasion  to  present.  He 
has  named  to  you  as  the  parties  to  this  controversy,  the 
State  of  New  York  and  the  State  of  Virginia — one,  first  in 
population  and  in  wealth,  and  greatest  in  the  living  energies 
of  her  people — the  other,  richest  in  the  memories  of  the  past, 
and  most  powerful  in  the  voices  of  her  dead.  I  am  not 
aware  that  the  State  of  New  York,  in  any  public  act  or 
declaration,  has  failed,  to  any  degree,  of  that  respect  for 
Virginia,  which  belongs  to  her  as  a  sister  State,  or  as  a 
political  community.  Nor  do  I  know  or  think  that  any 
citizens  of  this  State  fall  at  all  behind  the  learned  counsel 
in  his  affection  and  veneration  for  the  great  men  in  the 
history  of  Virginia,  by  whose  careers  of  public  service  and  of 
public  honors,  she  has  gained  the  proud  title  of  the  Mother 
of  Presidents.  Nor  do  I  know  that  that  portion  of  our 
people,  its  great  majority,  who,  with  their  veneration  for 
Washington,  and  Jefferson,  and  Madison,  and  Henry,  and 
Wythe,  and  Mason,  cherish  and  defend  the  opinions  upon 
slavery  which  those  statesmen  held,  honor  them  or  Virginia 
less  than  those  who  raise  statues  of  brass  or  of  marble  to 
their  memory,  and  follow  their  principles  with  contumely 
and  persecution.  I  do  not  know  that  an  imputation  can 
fairly  be  thrown  upon  any  part  of  our  community,  of  having 
less  respect  and  affection  for  our  common  country  and  the 
Federal  Government  than  is  claimed  here,  by  the  learned 
counsel,  on  behalf  of  those  who,  with  himself,  espouse  the 
views  concerning  the  institution  of  slavery,  which  he  has 
presented  to  the  Court.  Yet  I  understand  him  distinctly 
to  insist  here,  that,  unless  this  Court  shall  reverse  this  judg 
ment,  or  unless  a  Court  of  paramount  authority,  that  can 
control  still  further  the  question,  shall  reverse  it,  our  Federal 
system  of  government  is  actually  in  danger — that  indeed,  it 


90  SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

cannot  long  exist,  without  both  a  judicial  and  popular  rec 
ognition  of  the  legal  universality  of  slavery  throughout  our 
country. 

If  it  please  the  Court,  I  am  unable  to  discern  in  the  sub 
ject  itself,  or  in  the  aspect  of  the  political  affairs  of  the 
country,  any  grounds  for  these  alarming  suggestions,  which 
should  disturb,  for  a  moment,  your  Honors'  deliberations 
or  determinations  on  the  subject  before  you.  I  may  be  per 
mitted  to  say,  however,  that  if  the  safety  and  protection  of 
this  local,  domestic  institution  of  slavery,  in  the  communities 
where  it  is  cherished,  must  ingraft  upon  our  Federal  juris 
prudence  the  doctrine  that  the  Federal  Constitution,  by  its 
own  vigor,  plants  upon  the  virgin  soil  of  our  common  terri 
tories  the  growth  of  chattel  slavery — thus  putting  to  an 
open  shame  the  wisdom  and  the  patriotism  of  its  framers — 
if  they  must  coerce,  by  the  despotism  of  violence  and  terror, 
into  its  support  at  home,  their  whole  white  population;  if 
they  must  exact  from  the  Free  States  a  license  and  a  toler 
ance  for  what  reasons  of  conscience  and  of  policy  have 
purged  from  their  own  society,  and  subjugate  to  this  oppres 
sion  the  moral  freedom  of  their  citizens;  if  the  institution  of 
slavery,  for  its  local  safety  and  protection,  is  to  press  this 
issue,  step  by  step,  to  these  results;  if  such  folly  and  madness 
shall  prevail,  then,  by  possibility,  a  catastrophe  may  happen: 
this  catastrophe  will  be,  not  the  overthrow  of  the  general 
and  constituted  liberties  of  this  great  nation,  not  the  sub 
version  of  our  common  government,  but  the  destruction  of 
this  institution,  local  and  limited,  which  will  have  provoked 
a  contest  with  the  great  forces  of  liberty  and  justice,  which 
it  cannot  maintain,  and  must  yield  in  a  conflict  which  it  will, 
then,  be  too  late  to  repress. 


II 

ADDRESS  TO  THE  JURY  IN  SUMMING  UP  FOR 
THE  PROSECUTION  IN  THE  CASE  OF  THE 
UNITED  STATES  AGAINST  THE  OFFICERS 
AND  CREW  OF  THE  SCHOONER  SAVANNAH. 
(THE  SAVANNAH  PRIVATEERS) 

NOTE 

At  the  very  beginning  of  the  Civil  War  the  government  of  the 
Confederate  States  issued  letters  of  marque  to  privateers  fitted  out 
for  the  purpose  of  carrying  on  warfare  against  the  commercial 
marine  of  the  United  States .  The  schooner  *  *  Savannah' '  of  Charles 
ton,  mounting  one  pivot  gun,  was  one  of  these  privateers,  and  for 
tified  with  the  authority  of  a  letter  of  marque  issued  by  the  Con 
federate  States,  began  its  depredation  upon  the  commerce  of  the 
United  States. 

On  the  2nd  of  June,  1861,  the  "Savannah"  sailed  from  the  port 
of  Charleston  and  on  the  following  day,  after  having  captured  a 
brig,  laden  with  a  cargo  of  sugar,  was  herself  taken  as  prize  by 
the  United  States  Brig  of  War  Perry  and  delivered  to  the  com 
mander  of  the  United  States  blockading  squadron  off  Charleston. 
The  officers  and  crew  of  the  "Savannah"  were  taken  in  custody  by 
the  United  States  naval  authorities  and  in  the  course  of  the  month 
of  June  delivered  to  the  United  States  marshal  for  the  Southern 
District  of  New  York.  Upon  the  application  of  the  District  At 
torney  a  warrant  was  issued  under  which  the  officers  and  crew  of 
the  "Savannah"  were  committed  for  trial. 

On  the  16th  of  the  following  month  the  Federal  Grand  Jury, 
sitting  in  New  York,  brought  in  an  indictment  against  them  for 
robbery  on  the  high  seas — in  short  for  piracy. 

On  October  23,  1861,  the  case  came  on  for  trial  before  Judges 
Nelson  and  Shipman.  Mr.  E.  Delafield  Smith  was  the  United 
States  District  Attorney  and  he  had  as  associate  counsel,  Mr. 
Evarts,  Mr.  Samuel  Blatchford  and  Mr.  Ethan  Allen.  The 
officers  and  crew  of  the  "Savannah"  were  thirteen  in  number,  one 
of  whom,  however,  was  used  as  a  witness  for  the  prosecution  and 
against  him  a  nolle  prosequi  was  entered.  The  twelve  remaining 

91 


92  SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

prisoners  were  represented  by  Mr.  Larocque,  the  elder,  Mr.  Daniel 
Lord,  Mr.  James  T.  Brady,  Mr.  Algernon  S.  Sullivan,  Mr.  Joseph 
S.  Dukes,  Mr.  Isaac  Davega  and  Mr.  Maurice  Mayer. 

The  trial  continued  for  eight  days,  resulting  in  a  disagreement 
of  the  jury.  Its  conduct  on  the  part  of  the  prosecution  was 
wholly  in  the  hands  of  the  District  Attorney  and  Mr.  Evarts. 
All  of  the  counsel  for  the  prisoners  participated  actively  in  the 
trial  either  in  arguing  points  of  law  or  in  opening  and  summing 
up  to  the  jury.  Mr.  Larocque  opened  to  the  jury  for  the  defense, 
and  Messrs.  Dukes,  Sullivan,  Davega  and  Brady  all  addressed 
the  jury  in  summing  up.  On  the  close  of  Mr.  Brady's  argument — 
October  29 — Mr.  Evarts  began  the  closing  argument  to  the  jury 
for  the  prosecution,  completing  it  on  the  following  day. 

The  attitude  of  the  Government  towards  the  "insurrection" 
in  the  southern  slaveholding  States,  withholding  as  it  did  every 
recognition  of  the  Confederate  States  as  a  separate  political  body, 
with  national  traits  and  functions  entitled  to  cognizance,  was 
calculated  to  bring  into  the  case  many  questions  which  had  formed 
the  topics  of  political  discussion  for  the  previous  decade.  Thus 
in  the  defence  of  the  prisoners  to  sustain  the  authority  under  which 
they  had  acted,  their  counsel,  an  array  of  great  lawyers,  introduced 
the  question  of  the  right  of  secession  as  it  bore  upon  the  title  to 
recognition  of  the  Confederate  States.  How  vast  a  field  of  history 
and  of  political  science  and  philosophy  was  thus  explored  and, 
with  great  skill  and  learning,  spread  before  the  jury,  one  may 
readily  imagine. 

In  all  this  broad  debate  the  duty  devolved  upon  Mr.  Evarts 
to  sustain  the  Government,  and  a  recent  writer  has  said,  "His 
argument  in  this  memorable  case  is  really  a  philosophical  dis 
cussion  of  the  bases  of  republican  government." 

Mr.  Evarts,  himself,  in  writing  to  an  intimate  friend  at  the  time, 
speaks  of  his  participation  in  the  case,  saying,  "The  trial  was  quite 
a  laborious  and  responsible  one  for  me,  and  I  was  retained  for  the 
Government  only  the  day  before  the  trial  began.  I  had  seven 
counsel  with  seven  separate  speeches  against  me,  and  had  to 
reply  (1)  for  the  Prosecution,  (2)  for  the  Government,  (3)  for  the 
Republican  party,  (4)  for  the  free  States,  (5)  for  the  Nation,  (6) 
for  the  principles  of  Constitutional  Government,  (7)  for  the  human 
race,  and  all  this  though  I  had  a  fee  only  for  one  of  these  interests." 


ADDRESS  TO  THE  JURY  IN  THE  CASE  OF  THE 
SAVANNAH  PRIVATEERS 

May  it  please  your  Honors,  and  Gentlemen  of  the  Jury: 

A  trial  in  a  Court  of  Justice  is  a  trial  of  many  things 
besides  the  prisoners  at  the  bar.  It  is  a  trial  of  the  strength 
of  the  laws,  of  the  power  of  the  Government,  of  the  duty  of 
the  citizen,  of  the  fidelity  to  conscience  and  the  intelligence 
of  the  Jury.  It  is  a  trial  of  those  great  principles  of  faith, 
of  duty,  of  law,  of  civil  society,  that  distinguish  the  condi 
tion  of  civilization  from  that  of  barbarism.  I  know  no 
better  instance  of  the  distinction  between  a  civilized,  in 
structed,  Christian  people,  and  a  rude  and  barbarous  nation, 
than  that  which  is  shown  in  the  assertions  of  right  where 
might  and  violence  and  the  rage  of  passion  in  physical  contest 
determine  everything,  and  this  last  sober,  discreet,  patient, 
intelligent,  authorized,  faithful,  scrupulous,  conscientious 
investigation,  under  the  lights  of  all  that  intelligence  with 
which  God  has  favored  any  of  us;  under  that  instruction 
which  belongs  to  the  learned  and  accredited  expounders  of 
the  law  of  an  established  free  Government;  under  the  aid  of, 
and  yet  not  misled  by,  the  genius  or  eloquence  of  advocates 
on  either  side. 

But,  after  all,  the  controlling  dominion  of  duty  to  the  men 
before  you  in  the  persons  of  the  prisoners,  to  the  whole 
community  around  you,  and  to  the  great  nation  for  which 
you  now  discharge  here  a  vital  function  for  its  permanence 
and  its  safety, — your  duty  to  the  laws  and  the  Government 
of  your  country  (which,  giving  its  protection,  requires  your 
allegiance,  and  finds  its  last  and  final  resting-place,  both 
here  and  in  England,  in  the  verdicts  of  Juries), — your  duty 
to  yourselves, — requires  you  to  recognize  yourselves  not 
only  as  members  of  civil  society,  but  as  children  of  the 

93 


94  SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

"Father  of  an  Infinite  Majesty,"  and  amenable  to  His 
last  judgment  for  your  acts.  Can  any  of  us,  then,  fail  to 
feel,  even  more  fully  than  we  can  express,  that  sympathies, 
affections,  passions,  sentiments,  prejudices,  hopes,  fears, 
feelings  and  responsibilities  of  others  than  ourselves  are 
banished  at  once  and  forever,  as  we  enter  the  threshold  of 
such  an  inquiry  as  this,  and  never  return  to  us  until  we  have 
passed  from  this  sacred  precinct,  and,  with  our  hands  on  our 
breasts  and  our  eyes  on  the  ground,  can  humbly  hope  that 
we  have  done  our  duty  and  our  whole  duty? 

Something  was  said  to  you,  gentlemen  of  the  Jury,  of  the 
unwonted  circumstances  of  the  prosecution,  by  the  learned 
counsel  who,  many  days  ago,  and  with  an  impressiveness  that 
has  not  yet  passed  away  from  your  memory,  opened  on 
behalf  of  the  prisoners  the  course  of  this  defence. 

He  said  to  you  that  the  number  of  those  whose  fate,  for 
life  or  for  death,  hangs  on  your  verdict,  is  equal  to  your  own 
— hinting  a  ready  suggestion  that  that  divided  responsibility 
by  which  twelve  men  may  sometimes  shelter  themselves,  in 
weighing  in  the  balance  the  life  of  a  single  man,  is  not  yours. 
Gentlemen,  let  us  understand  how  much  of  force  and  effect 
there  is  in  the  suggestion,  and  how  truly  and  to  what  extent 
the  responsibility  of  a  Jury  may  be  said  to  include  this  issue 
of  life  and  death.  In  the  first  place,  as  jurymen,  you  have 
no  share  or  responsibility  in  the  wisdom  or  the  justice  of 
those  laws  which  you  are  called  upon  to  administer.  If 
there  be  defects  in  them — if  they  have  something  of  that 
force  and  severity  which  is  necessary  for  the  maintenance 
of  Government  and  the  protection  of  peace  and  property, 
and  of  life  on  the  high  seas — you  have  had  no  share  in 
their  enactment,  and  have  no  charge,  at  your  hands,  of  their 
enforcement.  In  the  next  place,  you  have  no  responsibility  of 
any  kind  in  regard  to  the  discretion  of  the  representatives  of 
this  Government  in  the  course  which  they  choose  to  take, 
as  to  whether  they  will  prosecute  or  leave  unprosecuted. 


THE  SAVANNAH  PRIVATEERS  95 

You  do  not,  within  the  limits  of  the  inquiry  presented  to 
you,  dispose  of  the  question,  why  others  have  not  been 
presented  to  you;  nor  may  that  which  has  been  done  in  a 
case  not  before  you,  serve  as  a  guide  for  the  subject  sub 
mitted  to  your  consideration.  So,  too,  you  have  no  re 
sponsibility  of  any  kind  concerning  the  course  or  views  of 
the  law  which  this  tribunal  may  give  for  your  guidance. 
The  Court  does  not  make  the  law,  but  Congress  does.  The 
Court  declares  the  law  as  enacted  by  the  Government,  and 
the  Jury  finds  the  facts — giving  every  scrutiny,  every  patient 
investigation,  every  favor  for  life,  and  every  reasonable 
doubt  as  to  the  facts,  to  the  prisoners.  Having  disposed  of 
that  duty,  as  sober,  intelligent  and  faithful  men,  graduating 
your  attention  only  by  the  gravity  of  the  inquiry,  you  have 
no  further  responsibility.  But  I  need  not  say  to  you,  gentle 
men,  that  if  any  civilized  government  is  to  have  control  of 
the  subject  of  piracy — if  pirates  are  to  be  brought  within 
the  jurisdiction  of  the  criminal  law — the  very  nature  of  the 
crime  involves  the  fact  that  its  successful  prosecution  neces 
sarily  requires  that  considerable  numbers  shall  be  engaged  in 
it.  I  am  quite  certain  that,  if  my  learned  friends  had  found 
in  the  circumstances  of  this  case  nothing  which  removed  it 
out  of  the  category  of  the  heinous  crime  of  private  plunder 
at  sea,  exposing  property  and  life,  and  breaking  up  com 
merce,  they  would  have  found  nothing  in  the  fact  that  a 
ship's  crew  was  brought  in  for  trial,  and  that  the  number 
of  that  crew  amounted  to  twelve  men,  that  should  be  pressed 
to  the  disturbance  of  your  serene  judgment,  in  any  dis 
position  of  the  case.  Now,  gentlemen,  let  us  look  a  little 
into  the  nature  of  the  crime,  and  into  the  condition  of  the 
law. 

The  penalty  of  the  crime  of  piracy  or  robbery  at  sea 
stands  on  our  statute  books  heavier  than  the  penalty  as 
signed  for  a  similar  crime  committed  on  land — which  is,  in 
fact,  similar,  so  far  as  concerns  its  being  an  act  of  depreda- 


96  SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

tion.  It  may  be  said,  and  it  is  often  argued,  that,  when  the 
guilt  of  two  offences  is  equal,  society  transcends  its  right 
and  duty  when  it  draws  a  distinction  in  its  punishments; 
and  it  may  be  said,  as  has  been  fully  argued  to  you — at  least, 
by  implication,  in  the  course  of  this  case — that  the  whole 
duty  and  the  whole  responsibility  of  civil  Governments,  in 
the  administration  of  criminal  law  and  the  punishment  of 
crime,  has  to  do  with  the  retributive  vengeance,  as  it  were, 
on  the  moral  guilt  of  the  prisoner.  Now,  gentlemen,  I 
need  not  say  to  you,  who  are  experienced  at  least  in  the 
common  inquiries  concerning  governments  and  their  duties, 
that,  as  a  mere  naked  and  separate  consideration  for  pun 
ishing  moral  guilt,  Government  leaves,  or  should  leave,  ven 
geance  where  it  belongs — to  Him  who  searches  the  heart 
and  punishes  according  to  its  secret  intents — drawing  no 
distinction  between  the  wicked  purpose  which  fully  plans, 
and  the  final  act  which  executes  that  purpose.  The  great, 
the  main  duty — the  great,  the  main  right — of  civil  society, 
in  the  exercise  of  its  dominion  over  the  liberties,  lives,  and 
property  of  its  subjects,  is  the  good  of  the  public,  in  the 
prevention,  the  check,  the  discouragement,  the  suppression 
of  crime.  And  I  am  sure  that  there  is  scarcely  one  of  us 
who,  if  guilt,  if  fault,  if  vice  could  be  left  to  the  punishment 
of  conscience  and  the  responsibility  of  the  last  and  great  as 
size,  without  prejudice  to  society,  without  injury  to  the 
good  of  others,  without,  indeed,  being  a  danger  and  a  de 
struction  to  all  the  peace,  the  happiness,  and  the  safety  of 
communities,  would  not  readily  lay  aside  all  his  share  in  the 
vindictive  punishments  of  guilty  men.  But  society,  framed 
in  the  form  and  for  the  purposes  of  Government,  finds,  alas ! 
that  this  tribunal  of  conscience,  and  this  last  and  future 
accountability  of  another  world,  is  inadequate  to  its  pro 
tection  against  wickedness  and  crime  in  this. 

You  will  find,  therefore,  in  all,  even  the  most  enlightened 
and  most  humane  codes  of  laws,  that  some  necessary  atten- 


THE  SAVANNAH  PRIVATEERS  97 

tion  is  paid  to  the  predominant  interest  which  society  has  in 
preventing  crime.  The  very  great  difficulty  of  detecting  it, 
the  circumstances  of  secrecy,  and  the  chances  of  escape  on 
the  part  of  the  criminal,  are  considerations  which  enter  into 
the  distribution  of  its  penalties.  You  will  find,  in  a  highly 
commercial  community,  like  that  of  England,  and  to  some 
extent — although,  I  am  glad  to  say,  with  much  less  severity 
— in  our  own,  which  is  also  a  highly  commercial  community, 
that  frauds  against  property,  frauds  against  trade,  frauds 
in  the  nature  of  counterfeiting  and  forgery,  and  all  those 
peaceful  and  not  violent  but  yet  pernicious  interferences 
with  the  health  and  necessary  activity  of  our  everyday  life, 
require  the  infliction  of  severe  penalties  for  what,  when  you 
take  up  the  particular  elements  of  the  crime,  seems  to  have 
but  little  of  the  force,  and  but  little  of  the  depth  of  a  serious 
moral  delinquency. 

The  severity  of  the  penalties  for  passing  counterfeit 
money  is  inflicted  upon  the  poor  and  ignorant  who,  in  so 
small  a  matter  as  a  coin  of  slight  value,  knowingly  and  intel 
ligently,  under  even  the  strongest  impulses  of  poverty,  are 
engaged  in  the  offence.  Now,  therefore,  when  commercial 
nations  have  been  brought  to  the  consideration  of  what 
their  enactments  on  the  subject  of  piracy  shall  be,  they 
have  taken  into  account  that  the  very  offence  itself  re 
quires  that  its  commission  should  be  outside  of  the  active 
and  efficient  protection  of  civil  society — that  the  com 
mission  of  the  crime  involves,  on  the  part  of  the  criminals, 
a  fixed,  deliberate  determination  and  preparation — and  that 
the  circumstances  under  which  the  victims,  either  in  respect 
of  their  property  or  of  their  lives,  are  exposed  to  these  ag 
gressions,  are  such  as  to  make  it  a  part  of  the  probable 
course  of  the  crime,  that  the  most  serious  evils  and  the 
deepest  wounds  may  be  inflicted.  Now,  when  a  crime,  not 
condemned  in  ethics  or  humanity,  and  which  the  positive 
enactments  of  the  law  have  made  highly  penal,  yet  contains 


98  SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

within  itself  circumstances  that  appeal  very  strongly  to  what 
ever  authority  or  magistrate  has  rightful  control  of  the  sub 
ject  for  a  special  exemption,  and  special  remission,  and  special 
concession  from  the  penalty  of  the  law,  where  and  upon  what 
principles  does  a  wise  and  just,  a  humane  and  benignant  Gov 
ernment,  dispose  of  that  question?  I  agree  that,  if  crimes 
which  the  good  of  society  requires  to  be  subjected  to  harsh 
penalties,  must  stand,  always  and  irrevocably,  upon  the 
mere  behest  of  judicial  sentence,  there  would  be  found  an 
oppression  and  a  cruelty  in  some  respects,  that  a  community 
having  a  conscientious  adherence  to  right  and  humanity 
would  scarcely  tolerate.  Where,  then,  does  it  wisely  be 
stow  all  the  responsibility,  and  give  all  the  power  that  be 
longs  to  this  adjustment,  according  to  the  particular  cir 
cumstances  of  the  moral  and  personal  guilt,  which  must  be 
necessary,  and  is  always  conceded?  Why,  confessedly,  to 
the  pardoning  power,  alluded  to  on  one  side  or  the  other — 
though  chiefly  on  the  part  of  the  prisoners'  counsel — in  the 
course  of  this  trial.  Now,  you  will  perceive,  at  once,  what 
the  difference  is  between  a  Court,  or  a  Jury,  or  a  public 
prosecuting  officer,  yielding  to  particular  circumstances  of 
actual  or  of  general  qualification  of  a  crime  charged, — so 
that  the  law  shall  be  thwarted,  and  the  certainty  and  direct 
ness  of  judicial  trial  and  sentence  be  made  the  sport  of 
sympathy,  or  of  casual  or  personal  influences, — and  placing 
the  pardoning  power  where  it  shall  be  governed  by  the 
particular  circumstances  of  each  case,  so  that  its  exercise 
shall  have  no  influence  in  breaking  down  the  authority  of 
law,  or  in  disturbing  the  certainty,  directness,  and  com 
pleteness  of  judicial  rules.  For,  it  is  the  very  nature  of  a 
pardon, — committed  to  the  Chief  Magistrate  of  the  Federal 
Union  in  cases  of  which  this  Court  has  jurisdiction,  and  to 
the  Chief  Magistrate  of  every  State  in  the  Union  in  cases 
of  which  the  State  tribunals  take  cognizance, — that  it  is  a 
recognition  of  the  law,  and  of  the  sentence  of  the  law,  and 


THE  SAVANNAH  PRIVATEERS  99 

leaves  the  laws  undisturbed,  the  rules  for  the  guidance  of 
men  unaffected,  the  power  and  strength  of  the  Government 
unweakened,  the  force  of  the  judiciary  unparalyzed,  and  yet 
disposes  of  each  case  in  a  way  that  is  just,  or  if  not  just, 
is  humane  and  clement,  where  the  pardon  is  exercised. 

Now,  gentlemen,  I  shall  say  nothing  more  on  the  subject 
of  pardon.  It  is  a  thing  with  which  I  have  nothing  to  do — 
with  which  this  learned  Court  has  nothing  to  do — with  which 
you,  as  jurymen,  have  nothing  to  do — beyond  the  fact  that 
this  beneficent  Government  of  ours  has  not  omitted  from 
its  arrangement,  in  the  administration  of  its  penal  laws,  this 
divine  attribute  of  mercy. 

Now,  there  being  the  crime  of  piracy  or  robbery  on  the 
high  seas,  which  the  interests  of  society,  the  protection  of 
property  and  of  life,  the  maintenance  of  commerce,  oblige 
every  State  and  every  nation,  like  ours,  to  condemn — what 
are  the  circumstances,  what  are  the  acts,  that,  in  view  of  the 
law,  amount  to  piracy?  You  will  understand  me  that,  for 
the  present,  I  entirely  exclude  from  your  consideration  any 
of  the  particular  circumstances  which  are  supposed  to  give 
to  the  actual  crime  perpetrated  a  public  character,  lifting  it 
out  of  the  penal  law  that  you  administer,  and  out  of  the  re 
gion  of  private  crime,  into  a  field  of  quite  different  consider 
ations.  They  are,  undoubtedly,  that  the  act  done  shall  be 
with  intent  of  depriving  the  person  who  is  in  possession  of 
property,  as  its  owner,  or  as  the  representative  of  that  owner, 
of  that  property.  That  is  what  is  meant  by  the  Latin  phrase, 
with  which  you  are  quite  as  familiar  now,  at  least,  as  I,  animo 
furandi — with  the  intention  of  despoiling  the  owner  of  that 
which  belongs  to  him.  And,  to  make  up  the  crime  of  rob 
bery  on  land,  in  distinction  from  larceny  or  theft,  as  we  gen 
erally  call  it  (though  theft,  perhaps,  includes  all  the  variety 
of  crime  by  which  the  property  of  another  is  taken  against 
his  will),  robbery  includes,  and  piracy,  being  robbery  at  sea, 
includes,  the  idea  that  it  is  done  with  the  application,  or  the 


100         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

threat,  or  the  presence  of  force.  There  must  be  actual  vio 
lence,  or  the  presence  and  exhibition  of  power  and  intent  to 
use  violence,  which  produces  the  surrender  and  delivery 
of  the  property.  Such  are  the  ingredients  of  robbery  and 
piracy.  And,  gentlemen,  these  two  ingredients  are  all;  and 
you  must  rob  one  or  the  other  of  them  of  this,  their  poison, 
or  the  crime  is  completely  proved,  when  the  fact  of  the 
spoliation,  with  these  ingredients,  shall  have  been  proved. 
The  use  that  the  robber  or  the  pirate  intends  to  make  of  the 
property,  or  the  justification  which  he  thinks  he  has  by  way 
of  retaliation,  by  way  of  injury,  by  way  of  provocation,  by 
way  of  any  other  occasion  or  motive  that  seems  justifiable 
to  his  own  conscience  and  his  own  obedience  to  any  form 
whatever  of  the  higher  law,  has  nothing  to  do  with  the  com 
pleteness  of  the  crime,  unless  it  come  to  what  has  been  ad 
verted  to  by  the  learned  counsel,  and  displayed  before  you 
in  citations  from  the  law-books — to  an  honest,  however 
much  it  may  be  a  mistaken  and  baseless,  idea  that  the 
property  is  really  the  property  of  the  accused  robber,  of 
which  he  is  repossessing  himself  from  the  party  against 
whom  he  makes  the  aggression. 

Now,  unless,  in  the  case  proved  of  piracy,  or  robbery  on 
land,  there  be  some  foundation  for  the  suggestion  that  the  wil 
ful  and  intentional  act  of  depriving  a  party  of  his  property 
rests  upon  a  claim  of  the  robber,  or  the  pirate,  that  it  is  his 
own  property  (however  baseless  may  be  the  claim),  you  can 
not  avoid,  you  cannot  defeat,  the  criminality  of  the  act  of 
robbery,  within  the  intention  of  the  law,  by  showing  that  the 
robber  or  the  pirate  had,  in  the  protection  of  his  own  con 
science,  and  in  the  government  of  his  own  conduct,  certain 
opinions  or  views  that  made  it  right  for  him  to  execute  that 
purpose.  Thus,  for  instance,  take  a  case  of  morals :  A  certain 
sect  of  political  philosophers  have  this  proposition  as  a  basis 
of  all  their  reasoning  on  the  subject  of  property, — that  is,  that 
property,  the  notion  of  separate  property  in  anything,  as  be- 


THE  SAVANNAH  PRIVATEERS  101 

longing  to  anybody,  is  theft;  that  the  very  notion  that  I  can 
own  anything,  whatever  it  may  be,  and  exclude  other  people 
from  the  enjoyment  of  it,  is  a  theft  made  by  me,  a  wrongful 
appropriation,  when  all  the  good  things  in  this  world,  in  the 
intention  of  Providence,  were  designed  for  the  equal  enjoy 
ment  of  the  human  race.  Well,  now,  a  person  possessed  of 
that  notion  of  political  economy  and  of  the  moral  rights  and 
duties  of  men,  might  seek  to  avail  himself  of  property  owned 
and  enjoyed  by  another,  on  the  theory  that  the  person  in 
possession  of  it  was  the  original  thief,  and  that  he  was  en 
titled  to  share  it.  I  need  not  say  to  you  that  all  these  ideas 
and  considerations  have  nothing  whatever  to  do  with  the 
consideration  of  the  moral  intent  with  which  a  person  is 
despoiled  of  his  property. 

Now,  with  regard  to  force,  I  do  not  understand  that  my 
learned  friends  really  make  any  question,  seriously,  upon 
the  general  principle  of  what  force  is,  or  upon  the  facts  of 
this  case,  that  this  seizure  of  the  Joseph  by  the  Savannah  had 
enough  of  force, — the  threat,  the  presence,  and  exhibition  of 
power, — and  of  the  intent  to  use  it,  to  make  the  capture  one 
of  force,  if  the  other  considerations  which  are  relied  upon 
do  not  lift  it  out  of  that  catalogue  of  crime. 

It  is  true  that  the  learned  counsel  who  last  addressed  you* 
seemed  to  intimate,  in  some  of  his  remarks,  near  the  close 
of  his  very  able  and  eloquent  and  interesting  address,  that 
there  was  not  any  force  about  it,  that  the  master  of  the  Joseph 
was  not  threatened,  that  there  was  no  evidence  that  the 
cannon  was  even  loaded,  and  that  it  never  had  been  fired  off. 
Well,  gentlemen,  the  very  illustration  which  he  used  of  what 
would  be  a  complete  robbery  on  land, — the  aggressor  pos 
sessing  a  pistol,  and  asking  in  the  politest  manner  for  your 
money, — relieves  me  from  arguing  that  you  must  fire  either 
a  cannon  or  a  pistol,  before  you  have  evidence  of  force.  If 
our  rights  stand  on  that  proposition,  that  when  a  pistol  is 

*  James  T.  Brady. 


102          SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

presented  at  our  breast,  and  we  surrender  our  money,  we 
must  wait  for  the  pistol  to  be  fired  before  the  crime  is  com 
pleted,  you  will  see  that  the  terrors  of  the  crime  of  robbery 
do  not  go  very  far  towards  protecting  property  or  person, 
which  is  the  object  of  it. 

When,  gentlemen,  the  Government,  within  a  statute  which, 
in  the  judgment  of  the  Court,  shall  be  pronounced  as  being 
lawfully  enacted  under  the  Constitution  of  the  United  States, 
has  completed  the  proof  of  the  circumstances  of  the  crime 
charged,  it  is  entitled  at  your  hands  to  a  conviction  of  the 
accused,  unless,  by  proof  adduced  on  his  part,  he  shall  so 
shake  the  consistency  and  completeness  of  the  proof  on  the 
part  of  the  Government,  or  shall  introduce  such  questions 
of  uncertainty  and  doubt,  that  the  facts  shall  be  disturbed 
in  your  mind,  or  unless  he  shall  show  himself  in  some  pre 
dicament  of  protection  or  right  under  the  law — (and,  by 
"under  the  law,"  I  mean,  under  the  law  of  the  land  where  the 
crime  is  punishable,  and  where  the  trial  and  the  sentence 
are  lawfully  attributed  to  be),  or  unless  he  shall  introduce 
some  new  facts  which,  conceding  the  truthfulness  and  the 
sufficiency  of  the  case  made  by  the  Government,  shall  still 
interpose  a  protection,  in  some  form,  against  the  applica 
tion  of  the  penalty  of  the  law.  I  take  it  that  I  need  not  say 
to  you  that  this  protection  or  qualification  of  the  character 
of  the  crime  must  be  by  the  law  of  the  land;  and,  whether 
it  comes  to  be  the  law  of  the  land  by  its  enactment  in  the 
statutes  of  the  United  States,  or  by  the  adoption  and  incor 
poration  into  the  law  of  the  land  of  the  principles  of  the  law  of 
nations,  is  a  point  quite  immaterial  to  you.  You  are  not 
judges  of  what  the  statutes  of  the  United  States  are,  except 
so  far  as  their  interpretation  may  rightfully  become  a  subject 
of  inquiry  by  the  Jury,  in  the  sense  of  whether  the  crime  is 
within  the  intent  of  the  Act,  in  the  circumstances  proved. 
You  are  not  judges  of  what  the  law  of  nations  is,  in  the  first 
place;  nor  are  you  judges  of  how  much  of  the  law  of  nations 


THE  SAVANNAH  PRIVATEERS  103 

has  been  adopted  or  incorporated  into  the  system  of  our 
Government  and  our  laws,  by  the  authority  of  its  Congress 
or  of  its  Courts. 

Whether,  as  I  say  to  you,  there  is  a  defence,  or  protection, 
or  qualification  of  the  acts  and  transactions  which,  in  their 
naked  nature,  and  in  their  natural  construction,  are  violent 
interferences  with  the  rights  of  property,  against  the  statute, 
and  the  protection  of  property  intended  by  the  statute, — 
whether  the  circumstances  do  change  the  liability  or  re 
sponsibility  of  the  criminal,  by  the  introduction  of  a  legal 
defence  under  the  law  of  nations,  or  under  the  law  of  the 
land  in  any  other  form,  is  a  question  undoubtedly  for  the 
Court, — leaving  to  you  always  complete  control  over  the 
questions  of  fact  that  enter  into  the  subject.  So  that  the 
suggestion,  also  dropped  by  my  learned  friend,  at  the  close 
of  his  remarks,  that  any  such  arrangement  would  make  the 
Jury  mere  puppets,  and  give  them  nothing  to  do,  finds  no 
place.  It  would  not  exclude  from  your  consideration  any 
matters  of  fact  which  go  to  make  up  the  particular  condition 
of  public  affairs  or  of  the  public  relations  of  the  community 
towards  each  other,  in  these  collisions  which  disturb  the  land, 
provided  the  Court  shall  hold  and  say  that,  on  such  a  state 
of  facts  existing,  or  being  believed  by  you,  there  is  in 
troduced  a  legal  qualification  or  protection  against  the 
crime  charged.  But,  if  it  should  be  held  that  all  these  facts 
and  circumstances,  to  the  extent  and  with  the  effect  that  is 
claimed  for  them  by  the  learned  counsel  as  matter  of  fact,  yet, 
as  matter  of  law,  leave  the  crime  where  it  originally  stood, 
being  of  their  own  nature  such  as  the  principles  of  law  do  not 
permit  to  be  interposed  as  a  protection  and  a  shield,  why,  then 
you  take  your  law  on  the  subject  in  the  same  way  as  you  do  o  n 
every  other  subject,  from  the  instructions  of  the  learned  and 
responsible  Bench,  whose  errors,  if  committed,  can  be  cor 
rected;  while  your  confusion  between  your  pro  vince  and  the 
province  of  the  Court  would,  both  in  this  case,  and  in  other 


104         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

cases,  and  sometimes  to  the  prejudice  of  the  prisoner,  and 
against  his  life  and  safety,  when  prejudices  ran  that  way, 
confound  all  distinctions;  and,  in  deserting  your  duty,  to 
usurp  that  of  another  portion  of  the  Court,  you  would  have 
done  what  you  could,  not  to  uphold,  but  to  overthrow  the 
laws  of  your  country  and  the  administration  of  justice  ac 
cording  to  law,  upon  which  the  safety  of  all  of  us,  at  all  times, 
in  all  circumstances,  depends. 

Now,  gentlemen,  let  me  ask  your  attention,  very  briefly, 
to  the  condition  of  the  proof  in  this  case,  from  the  immediate 
consideration  of  which  we  have  been  very  much  withdrawn 
by  the  larger  and  looser  considerations,  as  I  must  think 
them,  which  have  occupied  most  of  the  attention  of  the 
counsel,  and  been  made  most  interesting,  undoubtedly,  and 
attractive  to  you.  These  twelve  men  now  on  trial — four 
of  them  citizens  of  the  United  States,  and  eight  of  them 
foreigners  by  birth  and  not  naturalized — formed  part  of 
the  crew  of  a  vessel,  originally  a  pilot-boat,  called  the 
"Savannah."  That  crew  consisted  of  twenty  men,  and  one 
of  them  has  given  the  circumstances  of  the  preparation 
for  the  voyage,  of  the  embarkation  upon  the  vessel,  of 
her  weighing  anchor  from  the  port  of  Charleston  and  making 
her  course  out  to  sea  without  any  port  of  destination,  and 
without  any  other  purpose  than  to  make  seizures  of  vessels 
belonging  to  the  loyal  States  of  the  Union  and  its  citizens. 
He  has  shown  you  that  all  who  went  on  board,  all  who  are 
here  on  trial,  had  a  complete  knowledge  of,  and  gave  their 
ready  and  voluntary  assent  to  and  enlistment  in  this 
service;  and  that  the  service  had  no  trait  of  compulsion,  or 
of  organized  employment  under  the  authority  of  Gov 
ernment,  in  any  act  or  signature  of  any  one  of  the  crew,  as 
far  as  he  knew,  leaving  out,  of  course,  what  I  do  not  intend 
to  dispute,  and  what  you  will  not  understand  me  as  disre 
garding — the  effect  that  may  be  gained  from  the  notorious 
facts  and  the  documents  that  attended  the  enterprise.  He 


THE  SAVANNAH  PRIVATEERS  105 

has  shown  you  that,  going  to  sea  with  that  purpose,  without 
any  crew  list,  without  any  contract  of  wages,  they  descried, 
early  in  the  morning  after  they  adventured  from  the  port, 
and  at  a  point  about  sixty  miles  to  sea,  this  bark,  and  ran 
down  to  her;  and  that,  while  running  down  to  her,  they  sailed 
under  the  flag  of  the  United  States,  and,  hailing  the  brig, 
when  within  hailing  distance,  required  the  master  of  it  to 
come  on  board  with  his  papers.  Upon  the  inquiry  of  the 
master,  by  what  authority  they  made  that  demand  on  him, 
the  stars  and  stripes  being  then  floating  at  the  masthead  of 
the  Savannah,  Captain  Baker  informed  him  that  it  was 
in  the  name  and  by  the  authority  of  the  Confederate  States 
of  America,  at  the  same  time  hauling  down  the  American 
flag  and  running  up  the  flag  of  the  Confederacy.  What 
ever  followed  after  this,  gentlemen,  except  so  far  as  to 
complete  the  possession  of  the  captured  vessel,  by  putting 
a  prize  crew  on  board  of  it  (so  called),  sending  it  into  Charles 
ton,  and  their  lodging  in' jail  the  seamen  or  ship's  company 
of  the  Joseph  that  accompanied  it,  and  procuring  a  sale 
of  the  vessel — anything  beyond  that  (and  this  only  to  show 
the  completeness  of  the  capture,  and  the  maintenance  of  the 
design  to  absolutely  deprive  the  owners  of  the  vessel  and 
cargo  of  their  property)  seems  to  be  quite  immaterial.  Now, 
when  we  add  to  this  the  testimony  of  Mr.  Meyer,  the  master 
of  the  captured  vessel,  who  gives  the  same  general  view  of 
the  circumstances  under  which  his  vessel  was  overhauled 
and  seized  by  the  Savannah,  as  well  as  the  observations 
and  the  influences  which  operated  upon  his  mind  while  the 
chase  was  going  on,  we  have  the  completeness  of  the  crime, — 
not  forgetting  the  important  yet  undisputed  circumstances 
of  the  ownership  of  the  vessel,  and  of  the  nature  of  the 
voyage  in  which  she  was  engaged.  You  will  observe  that 
this  vessel,  owned  by,  and  we  may  suppose,  judging  from 
the  position  of  the  witnesses  examined  before  you,  consti 
tuting  a  good  part  of  the  property  of,  our  fellow-countrymen 


106         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

in  the  State  of  Maine,  sailed  on  the  28th  day  of  April,  from 
Philadelphia,  bound  on  a  voyage  to  Cardenas,  in  Cuba,  with 
a  charter  party  out  and  back,  under  which  she  was  to  bring 
in  a  cargo  of  sugar  and  molasses.  You  will  have  noticed, 
comparing  this  date  with  some  of  the  public  transactions 
given  in  evidence,  that  it  was  after  both  the  proclamation  of 
Mr.  Davis,  inviting  hostile  aggressions  against  the  commerce 
of  the  United  States,  on  the  part  of  whosoever  should  come 
to  take  commissions  from  him;  and  after  the  proclamation 
of  the  President  of  the  United  States,  made  to  the  people 
of  the  United  States  and  all  under  its  peace  and  protection, 
that  if,  under  this  invitation  of  Mr.  Davis,  anybody  should 
assume  authority  to  make  aggressions,  on  the  high  seas, 
upon  the  private  property  of  American  citizens,  they  should 
be  punished  as  pirates.  This  vessel,  therefore,  sailed  on  her 
voyage  under  the  protection  of  the  laws  of  the  United  States, 
and  under  this  statement  of  its  Government,  that  the  general 
laws  which  protected  property  and  seamen  on  the  high 
seas  against  the  crime  of  piracy  were  in  force,  and  would  be 
enforced  by  the  Government  of  the  United  States,  wherever 
it  held  power,  against  any  aggressions  that  should  assume  to 
be  made  under  the  protection  of  the  proclamation  of  Mr. 
Davis.  While  returning,  under  the  protection  of  this  flag 
and  of  this  Government,  she  meets  with  hostile  aggression 
at  the  hands  of  an  armed  vessel,  which  has  nothing  to  dis 
tinguish  it  from  the  ordinary  condition  of  piracy,  except  this 
very  predicament  provided  against  by  the  proclamation  of 
the  President,  and  under  the  protection  of  which  the  vessel 
had  sailed,  to  wit,  the  supposed  authority  of  Jefferson  Davis ; 
which  should  not,  and  cannot,  and  will  not,  as  I  suppose, 
protect  that  act  from  the  guilt  and  the  punishment  of 
piracy. 

Now,  you  will  have  observed,  gentlemen,  in  all  this,  that 
whatever  may  be  the  circumstances  or  the  propositions  of 
law  connected  with  this  case,  that  may  change  or  qualify 


THE  SAVANNAH  PRIVATEERS  107 

the  acts  and  conduct  of  Mr.  Baker,  so  far  as  the  owners  of 
this  vessel  and  the  owners  of  this  cargo  are  concerned, 
there  has  been  as  absolute,  as  complete,  as  final  and  as 
perfect  a  deprivation  of  their  property,  as  if  there  had  been 
no  commission — no  public  or  other  considerations  that 
should  expose  them  to  having  the  act  done  with  impunity. 
You  will  discover,  then,  that,  so  far  as  the  duty  of  protec 
tion  from  this  Government  to  its  citizens  and  their  prop 
erty — so  far  as  the  duty  of  maintaining  its  laws  and 
enforcing  them  upon  the  high  seas — is  concerned,  there 
is  nothing  pretended — there  is  nothing,  certainly,  proved — 
that  has  excused  or  can  excuse  this  Government,  in  its 
Executive  Departments,  in  its  Judicial  Departments,  in  the 
declaration  of  law  from  the  Court,  or  in  the  finding  of  facts 
by  the  Jury,  from  its  duty  towards  its  citizens  and  their 
property.  And,  while  you  have  been  led  to  look  at  all  the 
qualifying  circumstances  that  should  attend  your  judgment 
concerning  the  act  and  the  fact  on  the  part  of  these  prisoners, 
I  ask  your  ready  assent  to  the  proposition,  that  you  should 
look  at  the  case  of  these  sufferers,  the  victims  of  those  men, 
whose  property  has  been  ventured  upon  the  high  seas  in 
reliance  on  its  safety  against  aggression,  from  whatever 
source,  under  the  exercise  of  the  authority  of  the  Govern 
ment  to  repel  and  to  punish  such  crimes. 

Before  I  go  into  any  of  the  considerations  which  are  to 
affect  the  relations  of  these  prisoners  to  this  alleged  crime, 
and  to  this  trial  for  such  alleged  crime,  let  us  see  what 
there  are  in  the  private  circumstances  particular  to  them 
selves,  and  their  engagement  in  this  course  of  proceeding, 
that  is  particularly  suited  to  attract  your  favor  or  in 
dulgence.  Now,  these  men  had  not,  any  of  them,  been 
under  the  least  compulsion,  or  the  least  personal  or  particu 
lar  duty  of  any  kind,  to  engage  in  this  enterprise.  Who 
are  they?  Four  of  them  are  citizens  of  the  United  States. 
Mr.  Baker  is,  by  birth,  a  citizen  of  the  State  of  Pennsylvania; 


108         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

two  are  citizens,  by  birth,  of  the  State  of  South  Carolina, 
and  one  of  North  Carolina.  The  eight  men,  foreigners, 
are,  three  of  Irish  origin,  two  of  Scotch,  one  a  German,  one  a 
native  of  Manilla,  in  the  East  Indies,  and  one  of  Canton, 
in  China.  Now,  you  will  observe  that  no  conscription,  no 
enlistment,  no  inducement,  no  authority  of  any  public  kind 
has  been  shown,  or  is  suggested,  as  having  influenced  any  of 
them  in  this  enterprise.  My  learned  friend  has  thought  it 
was  quite  absurd  to  impute  to  this  Chinaman  and  this 
Manillaman  a  knowledge  of  our  laws.  Is  it  not  quite  as 
absurd  to  throw  over  them  the  protection  of  patriotism — 
the  protection  of  indoctrination  in  the  counsels  and  ethics 
of  Calhoun — to  give  them  the  benefit  of  a  departure  from 
moral  and  natural  obligations  to  respect  the  property  of 
others,  on  the  theory  that  they  must  surrender  their  own 
rectitude — their  own  sense  of  right — to  an  overwhelming 
duty  to  assist  a  suffering  people  in  gaining  their  liberty? 
What  I  have  said  of  them  applies  equally  to  these  Irishmen, 
this  German,  and  these  Scotchmen — as  good  men,  if  you 
please,  in  every  respect,  as  the  same  kind  of  men  born  in 
this  country.  I  draw  no  such  national  distinctions;  but  I 
ask  what  there  is,  in  the  sober,  sensible,  practical  considera 
tion  of  the  motives  and  purposes  with  which  these  men 
entered  into  this  enterprise  to  despoil  the  commerce  of  the 
United  States,  and  make  poor  men  of  the  owners  of  that 
vessel,  that  should  give  them  immunity  from  the  laws  of 
property  and  the  laws  of  the  land,  or  form  any  part  in  the 
struggles  of  a  brave  and  oppressed  people  (as  we  will  con 
sider  them,  for  the  purpose  of  the  argument)  against  a 
tyrannical  and  bloodthirsty  Government? 

No!  No!  Let  their  own  language  indicate  the  degree 
and  the  dignity  of  the  superior  motives  that  entered  into 
their  adoption  of  this  enterprise:  "We  thought  we  had  a 
right  to  do  it,  and  we  did  it."  Was  there  the  glow  of  patriot 
ism — was  there  the  self-sacrificing  devotion  to  work  in  the 


THE  SAVANNAH  PRIVATEERS  109 

cause  of  an  oppressed  people,  in  this?  No!  And  the  only 
determination  that  these  men  knew  or  looked  at,  was  the 
lawfulness  of  the  enterprise,  in  respect  of  the  sanctions  and 
punishments  of  the  law.  They,  undoubtedly,  had  not  any 
purpose  or  any  thought  of  running  into  a  collision  with  the 
comprehensive  power  and  the  all-punishing  condemnation  of 
the  statutes  of  the  United  States,  whether  they  knew  what 
the  statutes  were  or  not;  but  they  did  take  advantage  of 
the  occasion  and  opportunity  to  share  the  profits  of  a  priva 
teering  enterprise  against  the  commerce  of  the  United  States; 
and  they  were  unquestionably  acquainted,  either  by  original 
inspection  or  by  having  a  favorable  report  made  to  them, 
with  the  fundamental  provision  in  regard  to  this  system  of 
privateering,  so  called.  They  knew  that  the  entire  profits  of 
the  transaction  would  be  distributed  among  those  who 
were  engaged  in  it.  Now,  I  am  not  making  any  particular 
or  special  condemnation  of  these  men  (in  thus  readily,  with 
out  compulsion,  and  without  the  influence  of  any  superior 
motives,  however  mistaken,  of  patriotism)  beyond  what  the 
general  principles  of  public  law  and  general  opinion,  founded 
on  the  experience  of  privateering,  have  shown  to  be  the 
reckless  and  greedy  character  of  those  who  enter  upon 
private  war,  under  the  protection  of  any,  however  recent, 
flag.  Everybody  knows  it — everybody  understands  it — 
everybody  recognizes  the  fact  that,  if  privateers,  who  go 
in  under  the  hope  of  gain,  and  for  the  purposes  of  spoliation, 
are  not  corrupt  and  depraved  at  the  outset,  they  expose  them 
selves  to  influences,  and  are  ready  to  expose  themselves  to 
influences,  which  will  make  them  as  dangerous,  almost,  to 
commerce,  and  as  dangerous  to  life,  as  if  the  purpose  and 
the  principle  of  privateering  did  not  distinguish  them  from 
pirates.  And,  to  show  that,  in  this  law  of  ours,  there  is 
nothing  that  is  forced  in  its  application  to  privateers — that 
there  is  nothing  against  the  principles  of  humanity  or  com 
mon  sense  in  the  nation's  undertaking  to  say,  we  will  not 


110         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

recognize  any  of  those  high  moral  motives,  any  of  this 
superior  dignity,  about  privateers;  we  understand  the  whole 
subject,  and  we  know  them  to  be,  in  substance  and  effect, 
dangerous  to  the  rights  of  peaceful  citizens,  in  their  lives 
and  their  property, — reference  need  only  be  had  to  the 
action  of  civilized  Governments,  and  to  that  of  our  Govern 
ment  as  much  as  any,  in  undertaking  to  brush  away  these 
distinctions,  wherever  it  had  the  power — that  is  my  proposi 
tion — wherever  it  had  the  power  to  do  so'.  And  I  ask  your 
Honors'  attention  to  the  provision  on  this  subject,  in  the 
first  treaties  which  our  Government — then  scarcely  having 
a  place  among  the  nations  of  the  earth — introduced  upon  this 
very  question  of  piracy  and  privateers.  I  refer  to  the 
twenty-first  article  of  the  Treaty  of  Commerce  with  France, 
concluded  on  the  6th  of  February,  1778,  on  page  24  of  the 
eighth  volume  of  the  Statutes  at  Large.  This  is  a  com 
mercial  arrangement,  entered  into  by  this  infant  Govern 
ment,  before  its  recognition  by  the  Throne  of  Great  Britain, 
with  its  ally,  the  most  Christian  Monarch  of  France : 

"No  subjects  of  the  Most  Christian  King  shall  apply  for  or 
take  any  commission  or  letters  of  marque,  for  arming  any 
ship  or  ships  to  act  as  privateers  against  the  said  United 
States,  or  any  of  them,  or  against  the  subjects,  people  or 
inhabitants  of  the  said  United  States,  or  any  of  them,  or 
against  the  property  of  any  of  the  inhabitants  of  any  of  them, 
from  any  Prince  or  State  with  which  the  said  United  States 
shall  be  at  war;  nor  shall  any  citizen,  subject  or  inhabitant 
of  the  said  United  States,  or  any  of  them,  apply  for  or  take 
any  commission  or  letters  of  marque  for  arming  any  ship  or 
ships,  to  act  as  privateers  against  the  subjects  of  the  Most 
Christian  King,  or  any  of  them,  or  the  property  of  any  of 
them,  from  any  Prince  or  State  with  which  the  said  King 
shall  be  at  war;  and  if  any  person  of  either  nation  shall  take 
such  commissions  or  letters  of  marque,  he  shall  be  punished 
as  a  pirate." 


THE  SAVANNAH  PRIVATEERS  111 

Now,  we  have  had  a  great  deal  of  argument  here  to  show 
that,  under  the  law  of  nations, — under  the  law  that  must 
control  and  regulate  the  international  relations  of  inde 
pendent  powers — it  is  a  gross  and  violent  subversion  of  the 
natural,  inherent  principles  of  justice,  and  a  confusion  be 
tween  crime  and  innocence,  to  say  to  men  who,  under  the 
license  of  war,  take  commissions  from  other  powers,  that 
they  shall  be  hanged  as  pirates.  And  yet,  in  the  first  con 
vention  which  we,  as  an  infant  nation,  formed  with  any 
civilized  power,  attending  in  date  the  Treaty  of  Alliance 
which  made  France  our  friend,  our  advocate,  our  helper,  in 
the  war  of  the  Revolution,  his  Most  Christian  Majesty,  the 
King  of  France,  standing  second  to  no  nation  in  civilization, 
signalized  this  holy  alliance  of  friendship  in  behalf  of  justice, 
and  humanity,  and  liberty,  by  engaging  that,  whatever  the 
law  of  nations  might  be,  whatever  the  speciousness  of  pub 
licists  might  be,  his  subjects,  amenable  to  the  law,  should 
never  set  up  the  pretence  of  a  commission  of  privateering 
against  the  penalties  of  piracy.  Nor  had  this  treaty  of 
commerce,  which  I  have  referred  to,  anything  of  the  nature 
of  a  temporary  or  warlike  arrangement  between  the  parties, 
pending  the  contest  with  Great  Britain.  It  was  a  treaty 
independent  of  the  Treaty  of  Alliance  which  engaged  them 
as  allies,  offensive  and  defensive,  in  the  prosecution  of  that 
war.  Nor  is  this  an  isolated  case  of  the  morality  and  policy 
of  this  Government  on  the  subject  of  piracy.  By  reference 
to  the  19th  Article  of  the  Treaty  between  the  Netherlands 
and  the  United  States,  concluded  in  1782,  at  page  44  of  the 
same  volume,  your  Honors  will  find  the  same  provision. 
After  the  same  stipulation,  excluding  the  acceptance  of 
commissions,  from  any  power,  to  the  citizens  or  subjects  of 
the  contracting  parties,  there  is  the  same  provision:  "And 
if  any  person  of  either  nation  shall  take  such  commissions 
or  letters  of  marque,  he  shall  be  punished  as  a  pirate." 

Now,  our  Government  has  never  departed  from  its  pur- 


112         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

pose  and  its  policy,  to  meliorate  the  law  of  nations,  so  as  to 
extirpate  this  business  of  private  war  on  the  ocean.  It  is 
entirely  true  that,  in  its  subsequent  negotiations  with  the 
great  powers  of  Christendom,  it  has  directed  its  purpose  to 
the  more  thorough  and  complete  subversion  and  annihila 
tion  of  the  whole  abominable  exception,  which  is  allowed  on 
the  high  seas,  from  the  general  melioration  of  the  laws  of 
war,  and  does  not  tolerate  aggressions  of  violence,  and 
murder,  and  rapine,  and  plunder,  except  by  the  recognized 
forces  contending  in  the  field.  It  has  attempted  to  secure 
not  only  the  exclusion  of  private  armed  vessels  from  pri 
vateering,  but  the  exclusion  of  aggressions  on  the  part  of 
public  armed  vessels  of  belligerents  on  private  property  of 
all  kinds  upon  the  ocean.  And  no  trace  of  any  repugnance 
or  resistance  on  the  part  of  our  Government  to  aid  and  co 
operate  in  that  general  melioration  in  the  laws  of  war,  in 
respect  to  property  on  the  ocean,  can  be  charged  or  proved. 
In  pursuance  of  that  purpose,  as  well  as  in  conformity  with  a 
rightful  maintenance  of  its  particular  predicament  in  naval 
war, — to  wit,  a  larger  commerce  than  most  other  nations, 
and  a  smaller  navy, — it  has  taken  logically,  and  diplomati 
cally,  and  honestly,  the  position.  I  will  not  yield  to  these 
false  pretences  of  humanity  and  melioration  which  will 
only  deprive  us  of  privateers,  and  leave  our  commerce  ex 
posed  to  your  immense  navies.  If  you  are  honest  about  it, 
as  we  are,  and  opposed  to  private  war,  why,  condemn  and 
repress  private  war  in  respect  to  the  private  character  of  the 
property  attacked,  as  well  as  private  war  in  respect  to  the 
vessels  that  make  the  aggressions. 

Nor,  gentlemen,  do  I  hesitate  to  say  that,  whatever  we 
may  readily  concede  to  an  honest  difference  of  opinion  and 
feeling,  in  respect  to  great  national  contests,  where  men, 
with  patriotic  purposes,  raise  the  standard  of  war  against 
the  Government,  and,  on  the  other  hand,  uphold  the  old 
standard  to  suppress  the  violence  of  war  lifted  against  it, 


THE  SAVANNAH  PRIVATEERS  113 

we  do  not,  we  cannot,  as  honest  and  sensible  men,  look  with 
favor  upon  an  indiscriminate  collection  from  the  looser  por 
tions  of  society,  that  rush  on  board  a  marauding  vessel, 
the  whole  proceeds  and  results  of  whose  aggressions  are  to 
fill  their  own  pockets.  And,  when  my  learned  friends  seek 
to  go  down  into  the  interior  conscience  and  the  secret  motives 
of  conduct,  I  ask  you  whether,  if  this  had  been  a  service  in 
which  life  was  to  be  risked,  and  all  the  energies  of  the  man 
were  to  be  devoted  to  the  public  service,  for  the  glory  and  the 
interest  of  the  country,  and  the  poor  food,  poor  clothing 
and  poor  pay  of  enlisted  troops,  you  would  have  found 
precisely  such  a  rush  to  that  service? 

Now,  I  am  not  seeking,  by  these  considerations,  to  dis 
turb  in  the  least  the  legal  protections,  if  there  be  any,  in 
any  form,  which  it  is  urged  have  sprung  out  of  the  character 
of  privateering  which  this  vessel  had  assumed,  and  these  men, 
as  part  of  its  crew,  had  been  incorporated  in.  If  legal, 
let  it  be  so;  but  do  not  confound  patriotism,  which  sacri 
fices  fortune  and  life  for  the  love  of  country,  with  the  motives 
of  these  men,  who  seek  privateering  because  they  are  out 
of  employment.  Far  be  it  from  me  to  deny  that  the  feeling 
of  lawful  right,  the  feeling  that  statutory  law  is  not  violated, 
if  it  draw  the  line  between  doing  and  not  doing  a  thing,  is 
on  the  whole  a  meritorious  consideration  and  a  trait  that 
should  be  approved.  But  I  do  object  to  having  the  range 
of  these  men's  characters  and  motives  exalted,  from  the  low 
position  in  which  their  acts  and  conduct  place  them,  into 
the  high  purity  of  the  patriot  and  the  martyr.  We  are  try 
ing,  not  the  system  of  privateering— we  are  trying  the 
privateers,  as  they  are  called;  and,  when  they  fail  of  legal 
protection,  they  cannot  cover  themselves  with  this  robe  of 
righteousness  in  motive  and  purpose. 

Now,  how  much  was  there  of  violence  in  the  meditated 
course,  or  in  the  actual  aggression?  Why,  the  vessel  is 
named  in  the  commission  as  having  a  crew  of  thirty.  In 
10 


114         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

fact,  she  had  twenty.  Four  men  was  a  sufficient  crew  for  a 
mercantile  voyage.  She  had  an  eighteen  pounder,  a  great 
gun  that  must  have  reached  half  way  across  the  deck,  rest 
ing  on  a  pivot  in  the  middle,  capable  of  being  brought  around 
to  any  quarter,  for  attack.  At  the  time  this  honest  master 
and  trader  of  the  Joseph  descried  the  condition  of  the  vessel, 
he  was  struck  with  this  ugly  thing  amidships  as  he  called 
it — to  wit,  this  eighteen  pound  cannon,  and  was  afraid 
it  was  a  customer  probably  aggressive — a  robber.  But  he 
was  encouraged  by  what?  Although  he  saw  this  was  a 
pilot  boat,  and  not  likely,  with  good  intent,  to  be  out  so  far 
at  sea,  what  was  this  honest  sailor  encouraged  by?  The 
flag  of  the  United  States  was  flying  at  her  mast!  But,  when 
hailed — still  under  that  view  as  to  the  aspect  presented  by  the 
marauding  vessel — he  is  told  to  come  on  board,  and  asks 
by  what  authority — instead  of  what  would  have  been  the  glad 
and  reassuring  announcement — the  power  of  the  American 
flag — the  Confederate  States  were  announced  as  the  maraud 
ing  authority,  and  the  flag  of  his  country  is  hauled  down, 
and  its  ensign  replaced  by  this  threat  to  commerce.  Now, 
when  this  gun,  as  he  says,  was  pointed  at  him,  and  this 
hostile  power  was  asserted,  my  learned  friends,  I  submit  to 
you,  cannot,  consistently  with  the  general  fairness  with 
which  they  have  pursued  this  argument,  put  the  matter 
before  you  as  failing  in  any  of  the  completeness  of  proof  con 
cerning  force.  For,  when  we  were  purposing  to  show  that 
these  prisoners  all  the  while,  in  their  plans,  had  the  purpose 
of  force,  if  force  was  necessary,  and  that,  in  the  act  of  col 
lision  with  the  capturing  vessel,  that  force  occurred,  we 
were  stopped,  upon  the  ground  that  it  was  unnecessary 
to  occupy  the  attention  of  the  Court  and  the  Jury  with  any 
thing  that  was  to  qualify  this  vessel's  violent  character, 
by  reason  of  the  admission  that,  if  it  was  not  protected 
by  the  commission,  or  the  circumstances  of  a  public  char 
acter  of  whatever  kind  and  degree — about  which  I  admit 


THE  SAVANNAH  PRIVATEERS  115 

there  was  no  restriction  of  any  kind, — if  it  stood  upon  the 
mere  fact  that  the  vessel  was  taken  from  its  owners  by  the 
Savannah  in  the  way  that  was  testified, — it  would  not 
be  claimed  to  be  wanting  in  any  of  the  quality  of  complete 
spoliation,  or  in  any  of  the  quality  of  force.  Now,  that  de 
fence,  we  may  say,  must  not  be  recurred  to,  to  protect,  in 
your  minds,  these  men  from  the  penalty  which  the  law  has 
imposed  upon  the  commission  of  piracy.  It  cannot  be  pre 
tended  that  there  was  any  defect  in  the  purpose  of  despoiling 
the  original  owners,  nor  that  there  is  any  deficiency  in  the 
exhibition  of  force,  to  make  it  piracy;  and  you  will  perceive, 
gentlemen,  that  although  my  learned  friends  successively, 
Mr.  Dukes,  Mr.  Sullivan,  and  Mr.  Brady,  have,  with  the 
skill  and  purpose  of  advocates,  taken  occasion,  at  frequent 
recurring  points,  to  get  you  back  to  the  want  of  a  motive 
and  intent  or  purpose  of  the  guiltiness  of  robbing,  yet,  after 
all,  it  comes  to  this — that  the  inconsistency  of  the  motive 
and  intent,  or  the  guiltiness  of  robbing,  with  the  lawfulness, 
under  the  law  of  nations,  of  privateering,  is  the  only  ground 
or  reason  why  the  crime  is  deficiently  proved. 

I  do  not  know  that  I  need  say  anything  to  you  about 
privateering,  further  than  to  present  somewhat  distinctly 
what  the  qualifications,  what  the  conditions,  and  what  the 
purposes  of  privateering  are.  In  the  first  place,  privateering 
is  a  part  of  war,  or  is  a  part  of  the  preliminary  hostile  ag 
gressions  which  are  in  the  nature  of  a  forcible  collision  be 
tween  sovereign  powers.  Now,  what  is  the  law  of  nations  on 
this  subject — and  how  does  there  come  to  be  a  law  of  na 
tions — and  what  is  its  character,  what  are  its  sanctions, 
and  who  are  parties  to  it?  We  all  know  what  laws  are 
when  they  proceed  from  a  Government,  and  operate  upon 
its  citizens  and  its  subjects.  Law  then  comes  with  authority, 
by  right,  and  so  as  to  compel  obedience;  and  laws  are  always 
framed  with  the  intent  that  there  shall  be  no  opportunity 
of  violent  or  forcible  resistance  to  them,  or  of  violent  or 


116          SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

forcible  settlement  of  controversies  under  them,  but  that  the 
power  shall  be  submitted  to,  and  the  inquiry  as  to  right  pro 
ceed  regularly  and  soberly,  under  the  civil  and  criminal 
tribunals.  But,  when  we  come  to  nations,  although  they 
have  relations  towards  each  other,  although  they  have  duties 
towards  each  other,  although  they  have  rights  towards  each 
other,  and  although,  in  becoming  nations,  they  neverthe 
less  are  all  made  up  of  human  beings,  under  the  general  laws 
of  human  duty,  as  given  by  the  common  lawgiver,  God, 
yet  there  is  no  real  superior  that  can  impose  law  over  them, 
or  enforce  it  against  them.  And  it  is  only  because  of  that, 
that  war,  the  scourge  of  the  human  race — and  it  is  the  great 
vice  and  defect  of  our  social  condition,  that  it  cannot  be 
avoided — comes  in,  as  the  only  arbiter  between  powers 
that  have  no  common  superior.  I  am  sure  that  the  little 
time  I  shall  spend  upon  this  topic  will  be  serviceable;  as, 
also,  in  some  more  particular  considerations,  as  to  what  is 
called  a  state  of  war,  and  as  to  the  conditions  which  give 
and  create  a  war  bet  ween  the  different  portions  of  our  unhappy 
country  and  its  divided  population.  So,  then,  nations  have 
no  common  superior  whom  they  recognize  under  this  law, 
which  they  have  made  for  themselves  in  the  interest  of 
civilization  and  humanity,  and  which  is  a  law  of  natural 
right  and  natural  duty,  so  far  as  it  can  be  applied  to  the 
relations  which  nations  hold  to  one  another.  They  recog 
nize  the  fact  that  one  nation  is  just  as  good,  as  matter  of 
right,  as  another;  that  whether  it  be  the  great  Powers  of 
Russia,  of  England,  of  France,  of  the  United  States  of 
America,  or  of  Brazil,  or  whether  it  be  one  of  the  feeble 
and  inferior  Powers,  in  the  lowest  grade, — as,  one  of  the 
separate  Italian  Kingdoms,  or  the  little  Republic  of  San 
Marino,  whose  territories  are  embraced  within  the  circuit 
of  a  few  leagues,  or  one  of  the  South  American  States,  scarcely 
known  as  a  Power  in  the  affairs  of  men,— yet,  under  the  prop 
osition  that  the  States  are  equal  in  the  family  of  nations, 


THE  SAVANNAH  PRIVATEERS  117 

they  have  a  right  to  judge  of  their  quarrels,  and,  finding  oc 
casions  for  quarrel,  have  a  right  to  assert  them,  as  matter  of 
force,  in  the  form  of  war.  And  all  the  other  nations,  how 
ever  much  their  commerce  may  be  disturbed  and  injured, 
are  obliged  to  concede  certain  rights,  that  are  called  the 
rights  of  war.  We  all  understand  what  the  rights  of  war  are 
on  the  part  of  two  people  fighting  against  each  other.  A 
general  right  is  to  do  each  other  as  much  injury  as  they  can; 
and  they  are  very  apt  to  avail  themselves  of  that  right. 
There  are  certain  meliorations  against  cruelty,  which,  if  a 
nation  should  transgress,  probably  other  nations  might  feel 
called  upon  to  suppress.  But,  as  a  general  thing,  while  two 
nations  are  fighting,  other  nations  stand  by  and  do  not 
intervene.  But  the  way  other  nations  come  to  have  any 
interest,  and  to  have  anything  to  say  whether  there  is  war 
between  sovereign  powers,  grows  out  of  certain  rights  of  war 
which  the  law  of  nations  gives  to  the  contending  parties, 
against  neutrals.  For  instance:  Suppose  Spain  and  Mexico 
were  at  war.  Well,  you  would  say,  what  is  that  to  us? 
It  is  this  to  us.  On  the  high  seas,  a  naval  vessel  of  either 
power  has  a  right,  in  pursuit  of  its  designs  against  the  enemy, 
to  interrupt  the  commerce  of  other  nations  to  a  certain  ex 
tent.  It  has  a  right  of  visitation  and  of  search  of  vessels 
that  apparently  carry  our  flag.  Why?  In  order  to  see 
whether  the  vessel  be  really  our  vessel,  or  whether  our 
flag  covers  the  vessel  of  its  enemy,  or  the  property  of  its 
enemy.  It  has  also  a  right  to  push  its  inquiries  farther,  and 
if  it  finds  it  to  be  a  vessel  of  the  United  States  of  America, 
to  see  whether  we  are  carrying  what  are  called  contraband 
of  war  into  the  ports  of  its  enemy,  and,  if  so,  to  confiscate  it 
and  her.  Each  of  the  powers  has  a  right  to  blockade  the 
ports  of  the  other,  and  thus  to  break  up  the  trade  and  pur 
suits  of  the  people  of  other  nations — and  that  without  any 
quarrel  with  the  other  people.  And  so  you  see,  by  the  law 
of  nations,  this  state  of  war,  which  might,  at  first,  seem  to 


118         SPEECHES  OP  WILLIAM  MAXWELL  EVARTS 

be  only  a  quarrel  between  the  two  contending  parties,  really 
becomes,  collaterally,  and,  in  some  cases,  to  a  most  im 
portant  extent,  a  matter  of  interest  to  other  nations  of  the 
globe.  But  however  much  we  suffer — however  much  we 
are  embarrassed  (as,  for  example,  in  the  extreme  injury  to 
British  commerce  and  British  interests  now  inflicted  in  this 
country — the  blockade  keeping  out  their  shipping,  and  pre 
venting  shipments  of  cotton  to  carry  on  their  industry) 
we  must  submit,  as  the  English  people  submit,  in  the  view 
their  Government  has  chosen  to  take  of  these  transactions. 

Now,  gentlemen,  this  being  the  law  of  nations,  you  will 
perceive  that,  as  there  is  no  human  earthly  superior,  so 
there  are  no  Courts  that  can  lay  down  the  law,  as  our  Courts 
do  for  our  people,  or  as  the  Courts  of  England  do  for  their 
people.  There  are  no  Courts  that  can  lay  down  the  law  of 
nations,  so  as  to  bind  the  people  of  another  country,  except 
so  far  as  the  Courts  of  that  country,  recognizing  the  sound 
principles  of  morality,  humanity  and  justice  obtaining  in 
the  government  and  conduct  of  nations  towards  each  other, 
adopt  them  in  their  own  Courts.  So,  when  my  learned 
friends  speak  of  the  law  of  nations  as  being  the  law  that  is 
in  force  here,  and  that  may  protect  these  prisoners  in  this 
case  against  the  laws  of  the  United  States  of  America,  why, 
they  speak  in  the  sense  of  lawyers,  or  else  in  a  sense  that 
will  confuse  your  minds,  that  is  to  say,  that  the  law  of  na 
tions,  as  the  Court  will  expound  and  explain  it,  has  or  has 
not  a  certain  effect  upon  what  would  be  otherwise  the  plain 
behests  of  the  statute  law. 

Now,  it  is  a  part  of  the  law  of  nations,  except  so  far  as 
between  themselves  they  shall  modify  it  by  treaty — (two 
instances  of  which  I  have  read  in  the  diplomacy  of  our  own 
country,  and  a  most  extensive  instance  of  which  is  to  be 
found  in  the  recent  treaty  of  Paris,  whereby  the  law  of  na 
tions,  in  respect  to  privateering,  has  been  so  far  modified  as 
to  exclude  privateering  as  one  of  the  means  of  war)— out- 


THE  SAVANNAH  PRIVATEERS  119 

side  of  particular  arrangements  made  by  civilized  nations, 
it  was  a  part  of  the  original  law  of  war  prevailing  among 
nations,  that  any  nation  engaged  in  war  might  fit  out  pri 
vateers  in  aid  of  its  belligerent  or  warlike  purposes  or  move 
ments.  No  difficulty  arose  about  this  when  war  sprang 
up  between  two  nations  that  stood  before  the  world  in  their 
accredited  and  acknowledged  independence.  If  England 
and  France  went  to  war,  or  if  England  and  the  United  States, 
as  in  1812,  went  to  war,  this  right  of  fitting  out  privateers 
would  obtain  and  be  recognized.  But,  there  arises,  in  the 
affairs  of  nations,  a  condition  much  more  obscure  and  un 
certain  than  this  open  war  between  established  powers,  and 
that  is,  when  dissension  arises  in  the  same  original  nation — 
when  it  proceeds  from  discontent,  sedition,  private  or  local 
rebellion,  into  the  inflammation  of  great  military  aggression; 
and  when  the  parties  assume,  at  least  (assume,  I  say)  to  be 
rightfully  entitled  to  the  position  of  Powers,  under  the  law 
of  nations,  warring  against  one  another.  The  South  Ameri 
can  States,  in  their  controversy  which  separated  them  from 
the  parent  country,  and  these  States,  when  they  were  Col 
onies  of  Great  Britain,  presented  instances  of  these  domestic 
dissensions  between  the  different  parts  of  the  same  Gov 
ernment,  and  the  rights  of  war  were  claimed.  Now,  what 
is  the  duty  of  other  nations  in  respect  to  that?  Why,  their 
duty  and  right  is  this — that  they  may  either  accord  to  these 
struggling,  rebellious,  revolted  populations  the  rights  of  war, 
so  far  as  to  recognize  them  as  belligerents,  or  not;  but, 
whether  they  will  do  so  or  not,  is  a  question  for  their  Govern 
ments,  and  not  for  their  Courts,  sitting  under  and  by 
authority  of  their  Governments.  For  instance,  you  can 
readily  see  that  the  great  nations  of  the  earth,  under  the 
influences  upon  their  commerce  and  their  peace  which  I 
have  mentioned,  may  very  well  refuse  to  tolerate  the  quar 
rel  as  being  entitled  to  the  dignity  of  war.  They  may  say: 
"No,  no;  we  do  not  see  any  occasion  for  this  war,  or  any  jus- 


120         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

tice  or  benefit  that  is  to  be  promoted  by  it;  we  do  not  see 
the  strength  or  power  that  is  likely  to  make  it  successful; 
and  we  will  not  allow  a  mere  attempt  or  effort  to  throw  us 
into  the  condition  of  submitting  to  the  disturbance  of  the 
peace,  or  the  disturbance  of  the  commerce  of  the  world." 
Or,  they  may  say :  "  We  recognize  this  right  of  incipient  war  to 
raise  itself  and  fairly  contend  against  its  previous  sovereign 
— not  necessarily  from  any  sympathy,  or  taking  sides  in  it, 
but  it  is  none  of  our  affair;  and  the  principles  of  the  con 
troversy  do  not  prevent  us  from  giving  to  them  this  recog 
nition  of  their  supposed  rights."  Now  when  they  have  done 
that,  they  may  carry  their  recognition  of  right  and  power 
as  far  as  they  please,  and  stop  where  they  please.  They 
may  say:  "We  will  tolerate  the  aggression  by  public  armed 
vessels  on  the  seas,  and  our  vessels  shall  yield  the  right  of 
visitation  and  search  to  them."  They  may  say:  "We  will 
extend  it  so  far  as  to  include  the  right  of  private  armed  vessels, 
and  the  rights  of  war  may  attend  them; "  or  they  may  refuse 
to  take  this  last  step,  and  say,  "We  will  not  tolerate  the 
business  of  privateering  in  this  quarrel."  And  whatever  they 
do  or  say  on  that  subject,  their  Courts  of  all  kinds  will  follow. 
Apply  this  to  the  particular  trouble  in  our  national  affairs 
that  is  now  progressing  to  settle  the  fate  of  this  country. 
France  and  England  have  taken  a  certain  position  on  this 
subject.  I  do  not  know  whether  I  accurately  state  it  (and 
I  state  it  only  for  the  purpose  of  illustration,  and  it  is  not 
material),  but,  as  I  understand  it,  they  give  a  certain  degree 
of  belligerent  right,  so  that  they  would  not  regard  the 
privateers  on  the  part  of  the  Southern  rebellion  as  being 
pirates,  but  they  do  not  accord  succor  or  hospitality  in  their 
ports  to  such  privateers.  Well,  now,  suppose  that  one  of 
these  privateers  intrudes  into  their  ports  and  their  hos 
pitalities,  and  claims  certain  rights.  Why,  the  question, 
if  it  comes  up  before  a  Court  in  Liverpool  or  London,  will 
be — Is  the  right  within  the  credit  and  recognition  which 


THE  SAVANNAH  PRIVATEERS  121 

our  Government  has  given?  And  only  that.  So,  too,  our 
Government  took  the  position  in  regard  to  the  revolting 
States  of  South  America,  that  it  would  recognize  them  as 
belligerents,  and  that  it  would  not  hang,  as  pirates,  privateers 
holding  commissions  from  their  authority.  But,  when  other 
questions  came  up,  as  to  whether  a  particular  authority 
from  this  or  that  self-styled  power  should  be  recognized,  our 
Government  frowned  upon  it,  and  would  not  recognize  it. 
With  regard  to  Captain  Aury,  who  styled  himself  General 
issimo  of  the  Floridas,  or  something  of  that  kind,  when 
Florida  was  a  Spanish  province,  our  Courts  said:  "We  do 
not  know  anything  about  this — his  commissions  are  good 
for  nothing  here — our  Government  has  not  recognized  any 
such  contest  or  incipient  nationality  as  this."  So,  too,  in 
another  case,  where  there  was  an  apparent  commission 
from  one  struggling  power,  the  Court  says:  Our  Govern 
ment  does  not  recognize  that  power,  and  we  do  not,  in  giving 
any  rights  of  war  to  it;  but,  the  Court  says,  it  appears  in  the 
proof  that  this  vessel  claims  to  have  had  a  commission  from 
Buenos  Ayres,-  another  contending  power;  if  so,  that  is  a 
power  which  our  Government  recognizes;  and  the  case  must 
go  down  for  further  proof  on  that  point. 

I  confess  that,  if  the  views  of  my  learned  friends  are  to 
prevail,  in  determining  questions  of  crime  and  responsibility 
under  the  laws  and  before  the  Court,  and  are  to  be  accepted 
and  administered,  I  do  not  see  that  there  is  any  Govern 
ment  at  all.  For  you  have  every  stage  of  Government; 
first,  Government  of  right;  next  a  Government  in  fact;  next, 
a  Government  trying  to  make  itself  a  fact;  and,  next,  a 
Government  which  the  culprit  thinks  ought  to  be  a  fact. 
Well,  if  there  are  all  these  stages  of  Government,  and  all 
these  authorities  and  protections,  which  may  attend  the 
acts  of  people  all  over  the  world,  I  do  not  see  but  every 
Court  and  every  Jury  must,  finally,  resolve  itself  into  the 
great  duty  of  searching  the  hearts  of  men,  and  putting  its 


SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

sanctions  upon  pure  or  guilty  secret  motives,  or  notions,  or 
interpretations  of  right  and  wrong — a  task  to  which  you, 
gentlemen  of  the  Jury,  I  take  it,  feel  scarcely  adequate. 

Now,  gentlemen,  I  have  perhaps  wearied  you  a  little 
upon  this  subject;  because  it  is  from  some  confusion  in  these 
ideas, — first,  of  what  the  law  of  nations  permits  a  Govern 
ment  to  do,  and  how  it  intrudes  upon  and  qualifies  the  laws 
of  that  Government;  and,  second,  upon  what  the  rights  are 
that  grow  out  of  civil  dissensions,  as  toward  neutral  powers, 
— that  some  difficulty  and  obscurity  are  introduced  into  this 
case. 

If  the  Court  please,  I  maintain  these  propositions,  in  con 
formity  with  the  views  I  have  heretofore  presented — first,  that 
the  law  of  the  land  is  to  determine  whether  this  crime  of 
piracy  has  been  committed,  subject  only  to  the  province  of 
the  Jury  in  passing  upon  the  facts  attending  the  actual  per 
petration  of  the  offence;  and,  second,  upon  all  the  questions 
invoked  to  qualify,  from  the  public  relations  of  the  hostile 
or  contending  parties  in  this  controversy,  the  attitude  that 
this  Government  holds  towards  these  contending  parties, 
is  the  attitude  that  this  Court,  deriving  its  authority  from 
this  Government,  must  necessarily  hold  towards  them. 

I  have  argued  this  matter  of  the  choice  and  freedom  of  a 
Government  to  say  how  it  will  regard  these  civil  dissensions 
going  on  in  a  foreign  nation,  as  if  it  had  some  application  to 
this  controversy,  in  which  we  are  the  nation,  and  this  Court 
is  the  Court  of  this  nation. 

But,  gentlemen,  the  moment  I  have  stated  that,  you  will 
see  that  there  is  not  the  least  pretence  that  there  is  any  dis 
pensing  power  in  the  Court,  or  that  there  has  been  any  dis 
pensing  power  exercised  by  our  Government,  or  that  there 
has  been  any  pardon,  or  any  amnesty,  or  any  proclamation, 
saving  from  the  results  of  crime  against  our  laws,  any  per 
son  engaged  in  these  hostilities,  who  at  any  time  has  owed 
allegiance  and  obedience  to  the  Government  of  the  United 


THE  SAVANNAH  PRIVATEERS 

States.  Therefore,  here  we  stand,  really  extricated  from  the 
confusion,  and  from  all  the  wideness  of  controversy  and  of 
comment  that  attends  these  remote  considerations  of  this 
case  that  have  been  pressed  upon  your  attention  as  if 
they  were  the  case  itself,  on  the  part  of  our  learned  friend. 

Now,  if  the  Court  please,  I  shall  bestow  some  particular 
consideration  upon  the  statute,  but  I  shall  think  it  necessary 
to  add  very  little  to  the  remarks  I  have  heretofore  made  to 
the  Court.  The  8th  section  of  the  statute  has  been  charac 
terized  by  the  learned  counsel,  and,  certainly,  with  suffi 
cient  accuracy,  for  any  purposes  of  this  trial,  as  limited  to  the 
offence  of  piracy  as  governed  by  the  law  of  nations.  I  do 
not  know  that  any  harm  comes  from  that  description,  if  we 
do  not  confuse  it  with  the  suggestion  that  the  authority 
of  this  Government  over  the  crime  is  limited  to  the  con 
struction  of  the  law  of  nations  which  is  expressed  in  that 
section  of  the  statute.  At  all  events,  as  they  concede,  I  be 
lieve,  that  the  8th  section  is  within  the  constitutional  right 
and  power  of  Congress,  under  the  special  clause  giving  them 
authority  to  define  and  punish  piracy,  under  the  law  of 
nations,  there  is  no  room  for  controversy  here  on  the  point. 
When  we  come  to  the  9th  section,  we  have  two  different  and 
quite  inconsistent  views  presented  by  the  different  counsel. 
One  of  the  counsel  (I  think,  Mr.  Dukes)  insists  that  the  9th 
section  does  not  create  any  additional  crime  beyond  that  of 
piracy  as  defined  in  the  8th  section,  but  only  robs  that  crime  of 
piracy  of  any  apparent  protection  from  a  commission  or 
authority  from  any  State.  But,  my  friend  Mr.  Brady  con 
tends  (and,  I  confess,  according  to  my  notion  of  the  law,  with 
more  soundness)  that  there  is  an  additional  crime,  which 
would  not  be  embraced,  necessarily,  in  the  crime  of  piracy 
or  robbery  on  the  high  seas — which  is  the  whole  purview  of 
the  8th  section,  and  which  is  in  terms  repeated  in  the  9th — 
and  that  the  additional  words,  "or  any  act  of  hostility  against 
the  United  States,  or  any  citizens  thereof,"  create  a  punish- 


124         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

able  offence,  although  it  may  fall  short  of  the  completed 
crime  of  piracy  and  robbery,  as  defined.  Now,  I  concede  to 
my  learned  friend  that  the  particular  case  he  put  of  a  quarrel 
between  two  ships'  crews  on  the  high  seas,  and  of  an  attack 
by  one  of  the  crew  of  one  upon  one  of  the  crew  of  the  other 
with  a  belaying  pin,  would  not,  in  my  judgment,  as  an 
indictable,  punishable  offence,  fall  within  the  9th  section. 
But,  whether  I  am  right  or  wrong  about  it,  does  not  impede 
the  argument  of  the  Government,  that  there  are  crimes 
which  are  in  the  nature  of  and  up  to  the  completeness  of 
hostile  attacks  upon  vessels  or  citizens  of  the  United  States 
which  would  not  be  piracy,  but  yet  are  punishable  under  the 
9th  section. 

Now,  agreeing,  thus  far,  that  there  is  an  added  offence  to 
the  crime  of  piracy  in  the  9th  section,  I  am  obliged  to  meet 
his  next  proposition,  that  such  additional  offence  is  beyond 
the  constitutional  power  of  Congress,  because  it  is  an  offence 
which  does  not  come  up  to  the  crime  of  piracy,  and,  there 
fore,  exceeds  the  grant  of  authority  under  the  particular 
section  of  the  Constitution  which  gives  to  Congress  power 
over  the  definition  and  punishment  of  piracy  under  the  law 
of  nations. 

Now,  if  the  Court  please,  the  argument  is  a  very  simple 
one.  This  9th  section  does  not  profess  to  carry  the  power 
of  this  Government  where  alone  the  principles  of  the  law  of 
nations  would  justify;  that  is,  to  operate  upon  all  the  world, 
so  far  as  the  subjects  of  it — that  is,  the  persons  included  in 
its  sanctions — are  concerned,  or  so  far  as  the  property  pro 
tected  by  it  is  concerned.  It  is  limited  to  citizens,  and 
limited  to  hostilities  against  citizens  of  the  United  States, 
or  their  property  at  sea.  Now,  the  authority  in  respect  to 
this  comes  to  Congress  under  the  provision  of  the  Constitu 
tion  which  gives  the  regulation  of  commerce  and  its  control, 
in  regard  to  which  I  need  not  be  more  particular  to  your 
Honors,  because  they  are  statutes  of  every-day  enforcement, 


THE  SAVANNAH  PRIVATEERS  125 

and  under  the  highest  penalty,  too,  of  the  law,  such  as  re 
volt,  mutiny,  etc.,  which  have  nothing  to  do  with  the  national 
considerations  of  the  law  of  piracy,  and  nothing  to  do  with 
the  clause  of  the  Constitution  which  gives  to  Congress 
power  over  the  crime  of  piracy,  but  rest  in  the  power  re 
posed  in  Congress  to  protect  the  commerce  of  the  United 
States.  So,  this  is  wholly  within  the  general  competency  of 
Congress  to  govern  citizens  of  the  United  States  on  the 
high  seas,  and  to  protect  the  property  of  citizens  on  the  high 
seas,  although  there  is  no  common  law  of  general  jurisdic 
tion  of  Congress  on  the  subject  of  crimes. 

Now,  upon  this  subject  there  is  but  one  other  criticism, 
and  that  is — that  although  the  statute  is  framed  with  the  in 
tent,  and  its  language  covers  the  purpose,  of  prohibiting 
any  defence  or  protection  being  set  up  under  an  assumed 
or  supposed  authority  from  any  foreign  Government,  State, 
or  Prince,  or  from  any  person,  yet  the  particular  authority 
which  is  averred  in  the  indictment  and  produced  in  proof, 
if  you  take  it  in  the  sense  that  we  give  to  it,  is  not  within 
the  purview  of  the  statute,  and,  if  you  take  it  in  any  other 
sense,  is  not  proved ;  and  that  thus  a  variance  arises  between 
the  indictment  and  the  proof,  because  the  proof  goes  so  far 
as  to  remove  from  under  the  statute  the  four  defendants  who 
would  otherwise  be  amenable  as  citizens,  by  making  the 
Government  foreign,  and  making  them  foreign  citizens. 

Now,  to  take  up  one  branch  of  this  at  a  time,  I  do  not 
care  at  all  whether  the  Government  of  the  United  States, 
when  they  passed  this  law,  anticipated  that  there  would 
ever  be  an  occurrence  which  should  give  shape  to  such  a 
commission  as  this,  from  either  a  person  or  an  authority 
that  emanated  from  what  was  or  ever  had  been  a  part  or  a 
citizen  of  the  United  States.  If  these  new  occurrences  here 
have  produced  new  relations — (and  that  is  the  entire  argu 
ment  of  my  learned  friends,  for,  if  they  have  produced  no 
new  relations,  what  have  we  to  do  with  any  of  these  discus- 


126         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

sions?) — if  they  have  produced  new  relations,  perfect  or 
imperfect,  effectual  or  ineffectual,  to  this  or  that  extent,  why 
then,  if  these  new  relations  and  attitude  have  brought  this 
matter  within  the  purview  of  a  statute  of  the  United  States 
which  was  framed  to  meet  all  relations  that  might  arise  at 
any  time,  they  come  within  its  predicament,  and  the  argu 
ment  seems  to  me  to  amount  to  nothing.  It  will  not  be  pre 
tended  that  the  9th  section  of  this  statute  can  only  be  en 
forced  as  to  Powers  in  existence  at  the  time  it  was  passed. 
Whenever  a  new  Power  or  new  authority  is  set  forth  as  a 
protection  to  the  crime  of  piracy,  the  9th  section  of  the 
statute  says:  "Well,  we  do  not  know  or  care  anything  about 
what  the  law  of  nations  says  about  your  protection,  or  your 
authority — we  say  that  no  citizen  of  the  United  States,  depre 
dating  against  our  commerce,  shall  set  up  any  authority  to 
meet  the  justice  of  our  criminal  law."  Well,  now,  that  the 
statute  has  said;  and  we  have  averred  and  proved  the  commis 
sion  such  as  it  is.  It  is  either  the  commission  of  a  foreign 
Prince,  or  State,  or  it  is  an  authority  from  some  person.  We 
do  not  recognize  it  as  from  a  foreign  State  or  Prince.  Indeed, 
Mr.  Davis  does  not  call  himself  a  Prince,  and  we  do  not  recog 
nize  the  Confederate  States  as  a  nation  of  State,  in  any  rela 
tion.  Therefore  if  we  would  prove  this  authority  under  our 
law,  we  must  aver  it  as  it  is,  coming  from  an  individual  who 
was  once  a  citizen  of  the  United  States,  and  still  is,  as  the  law 
decides,  a  citizen  of  the  United  States.  Whatever  part  or 
pretension  of  authority  he  assumes,  and  whatever  real  fact 
and  substance  there  may  be  to  his  power,  it  is,  in  the  eye  of 
the  law,  nothing.  It  is  not  provable,  and  it  is  not  proved. 
Now,  as  to  the  right  of  Congress  to  include  the  additional 
crime,  under  the  authority  given  to  it  to  punish  piracy  accord 
ing  to.  the  law  of  nations,  my  learned  friend  contends  that  this 
statute  is  limited  by  that  authority,  and  is,  as  respects  any 
body  within  its  purview*  unconstitutional,  and  that,  although 
a  particular  act  may  be  within  the  description  of  the  statute, 


THE  SAVANNAH  PRIVATEERS  127 

so  far  as  regards  hostility,  it  is  not  piracy.  On  that  subject 
I  refer  your  Honors  to  a  very  brief  proposition  contained  in 
the  case  of  The  United  States  vs.  Pirates  (5  Wheaton,  202) : 

"And  if  the  laws  of  the  United  States  declare  those  acts 
of  piracy  in  a  citizen,  when  committed  on  a  citizen,  which 
would  be  only  belligerent  acts  when  committed  on  others, 
there  can  be  no  reason  why  such  laws  should  not  be  enforced. 
For  this  purpose  the  9th  section  of  the  Act  of  1790  appears 
to  have  been  passed.  And  it  would  be  difficult  to  induce 
this  Court  to  render  null  the  provisions  of  that  clause,  by 
deciding  either  that  one  who  takes  a  commission  under  a 
foreign  power,  can  no  longer  be  deemed  a  citizen,  or  that  all 
acts  committed  under  such  a  commission,  must  be  adjudged 
belligerent,  and  not  piratical  acts." 

I  would  also  refer  to  the  case  of  The  Invincible,  to 
which  my  learned  friend  called  the  attention  of  the  Court, 
in  the  opinion  of  the  late  Attorney  General,  Mr.  Butler.  It 
is  to  be  found  in  the  3rd  volume  of  the  Opinions  of  the 
Attorneys  General,  page  120.  My  learned  friend  cited 
this  case  in  reference  to  the  proposition  that  persons  holding 
a  commission  (as  I  understood  him)  should  not  be  treated  as 
pirates,  under  the  law  of  nations,  by  reason  of  any  particular 
views  or  opinions  of  our  Government.  I  refer  to  that  part 
of  the  opinion  where  he  says:  "A  Texan  armed  schooner  can 
not  be  treated  as  a  pirate  under  the  Act  of  April  30th,  1790, 
for  capturing  an  American  merchant-man,  on  the  alleged 
ground  that  she  was  laden  with  provisions,  stores,  and  muni 
tions  of  war  for  the  use  of  the  army  of  Mexico,  with  the  Gov 
ernment  of  which  Texas,  at  the  time,  was  in  a  state  of  revolt 
and  civil  war." 

Now,  undoubtedly,  Mr.  Butler  does  here  hold  that,  by 
the  law  of  nations,  in  a  controversy  between  revolting  Col 
onies  and  the  parent  State,  where  our  Government  recog 
nizes  a  state  of  war  as  existing,  a  privateer  cannot  be  treated 
as  a  pirate.  But  we  will  come  to  the  opinion  of  the  At- 


128         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

torney-General  on  the  other  proposition  we  contend  for — 
that  is,  in  support  of  the  9th  section  of  the  statute,  as  far 
as  it  would  have  exposed  citizens  of  the  United  States  to 
the  penalty  of  piracy: 

"In  answer  to  this  question,  I  have  the  honor  to  state  that, 
in  my  opinion,  the  capture  of  the  American  ship  Pocket 
can  in  no  view  of  it  be  deemed  an  act  of  piracy,  unless  it  shall 
appear  that  the  principal  actors  in  the  capture  were  citizens  of 
the  United  States.  The  ninth  section  of  the  Crimes  Act  of 
30th  April,  1790,  declares  'that  if  any  citizen  shall  commit 
any  piracy  or  robbery,  or  any  act  of  hostility  against  the 
United  States,  or  any  citizen  thereof,  upon  the  high  seas, 
under  color  of  any  commission  from  any  foreign  Prince, 
or  State,  or  on  pretence  of  authority  from  any  person,  such 
offender  shall,  notwithstanding  the  pretence  of  any  such 
authority,  be  deemed,  adjudged  and  taken  to  be  a  pirate, 
felon  and  robber,  and  on  being  thereof  convicted,  shall  suffer 
death.'  This  provision  is  yet  in  force,  and  should  it  be  found 
that  any  of  those  who  participated  in  the  capture  of  the  Pocket 
are  American  citizens,  the  flag  and  commission  of  the  Govern- 
ment  of  Texas  would  not  protect  them  from  the  charge  of  piracy." 

It  will  be  seen  here,  that  the  condition  of  belligerents  will 
not  protect  our  citizens  from  aggressions  against  our 'com 
merce;  and  there  is  no  place  for  my  learned  friends  to  put  this 
authority,  and  this  assumed  belligerent  power  and  right,  on 
any  footing  that  must  not  make  it,  either  actually  or  in 
pretence,  at  least,  proceed  from  a  separate  contending  power. 
And,  if  they  say  (as,  in  one  of  their  points  substantially  is 
said)  that  the  9th  section  cannot  apply,  because  the  alleged 
authority  is  not  from  a  foreign  State,  or  a  foreign  personage, 
but  from  a  personage  of  our  own  country, — why,  then,  we 
are  thrown  back  at  once  to  the  8th  section  entirely,  and 
there  is  either  no  pretence  of  authority  at  all,  and  it  is  just 
like  arguing  that  the  pirate  accused  was  authorized  by  the 
merchant  owner  of  a  vessel  in  South  street  to  commit  piracy, 


THE  SAVANNAH  PRIVATEERS 

or  we  are  put  in  the  position,  which  is  unquestionably  the 
true  one,  that  the  9th  section  was  intended  to  cover  all  pos 
sible  although  unimagined  forms  in  which  the  justice  of  the 
country  could  be  attempted  to  be  impeded  under  the  claim 
of  authority. 

Now,  gentlemen,  if  the  Court  please,  I  come  to  a  con 
sideration  of  the  political  theories  or  views  on  which  these 
prisoners  are  sought  to  be  protected  against  the  penalties 
of  this  law.  In  that  argument,  as  in  my  argument,  it  must 
be  assumed  that  these  penalties,  but  for  those  protections, 
would  be  visited  upon  them;  for  we  are  not  to  be  drawn 
hither  and  thither  by  this  inquiry,  and  to  have  it  said,  at  one 
time,  that  the  crime  itself,  in  its  own  nature,  is  not  proved, 
and,  at  another  time,  that,  if  it  be  proved,  these  are  defences. 
I  have  said  all  I  need  to  say,  and  all  I  should  say,  about  the 
crime  itself.  The  law  of  the  case  on  that  point  will  be  given 
to  you  by  the  Court,  and,  if  it  should  be,  as  I  suppose  it  must, 
in  accordance  with  that  laid  down  by  the  Court  in  the  Cir 
cuit  of  Pennsylvania,  then,  as  my  learned  friend  Mr.  Brady 
has  said  of  that,  that  he  could  not  see  how  the  Jury  could 
find  any  verdict  but  guilty,  it  necessarily  follows,  if  that  is 
a  sound  view  of  the  law,  that  you  cannot  find  any  other 
verdict  but  guilty.  I  proceed,  therefore,  to  consider  these 
other  defences  which  grow  out  of  the  particular  circum 
stances  of  the  piracy. 

Now,  there  are,  as  I  suggested,  three  views  in  which  this 
subject  of  the  license,  or  authority,  or  protection  against 
our  criminal  laws  in  favor  of  these  prisoners,  is  urged,  from 
their  connection  with  particular  occurrences  disclosed  in  the 
evidence.  One  is,  that  they  are  privateers;  but  I  have  shown 
you  that,  to  be  privateers,  their  commission  must  come  from 
an  independent  nation,  or  from  an  incipient  nation,  which 
our  Government  recognizes  as  such.  Therefore,  they  fail 
entirely  to  occupy  that  explicit  and  clear  position,  under  the 
law  of  the  land  and  the  law  of  nations.  But,  as  they  say, 
11 


130         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

they  are  privateers  either  of  a  nation  or  a  Power  that  exists, 
as  the  phrase  is,  de  jure, — that  has  a  right,  the  same  as  we,  or 
England,  or  France, — or  a  Power  that  has  had  sufficient 
force  and  strength  to  establish  itself,  as  matter  of  fact. 
Without  considering  the  question  of  right,  as  recognized 
under  the  system  of  nations,  they  contend,  and  with  a  great 
deal  of  force  and  earnestness,  in  the  impression  of  their  views 
upon  the  Jury,  and  great  skill  and  discretion  in  handling 
the  matter, — they  contend  that  there  is  a  state  of  civil  war 
in  this  country,  and  that  a  state  of  civil  war  gives  to  all 
nations  engaged  in  it,  against  the  Government  with  which 
they  are  warring,  rights  of  impunity,  of  protection,  of  re 
spect,  of  regard,  of  courtesy,  which  belong  to  the  laws  of 
war;  and  that,  without  caring  to  say  whether  they  are  a 
Government,  or  ever  will  be  a  Government,  so  long  as  they 
fight  they  cannot  be  punished. 

That  is  the  proposition — there  is  nothing  else  to  it.  They 
come  down  from  the  region  of  de  jure  Government  and 
de  facto  Government,  and  have  nothing  to  prove  but  the 
rage  of  war  on  the  part  of  rebels,  in  force  enough  to  be  called 
war.  Then  they  say  that,  by  their  own  act,  they  are  lib 
erated  from  the  laws,  and  from  their  duty  to  the  laws, 
which  would  otherwise,  they  admit,  have  sway  over  them, 
and  against  which  they  have  not  as  yet  prevailed.  That  is 
the  proposition. 

Another  proposition,  on  which  they  put  themselves,  is 
that  whatever  may  be  the  law,  and  whatever  the  extent  of 
the  facts,  if  any  of  these  persons  believed  that  there  was  a 
state  of  war,  rightful  to  be  recognized,  and  believed,  in  good 
faith,  that  they  were  fighting  against  the  Government  of  the 
United  States,  they  had  a  right  to  seize  the  property  of 
United  States'  citizens;  and  that,  if  they  believed  that  they 
constituted  part  of  a  force  co-operating,  in  any  form  or  ef 
fect,  with  the  military  power  which  has  risen  up  against 
the  United  States  of  America,  then,  so  long  as  they  had  that 


THE  SAVANNAH  PRIVATEERS  131 

opinion,  they,  by  their  own  act,  and  their  own  construction 
of  their  own  act,  impose  the  law  upon  this  Government, 
and  upon  this  Bench,  and  upon  this  Jury,  and  compel  you 
to  say  to  them  that  if,  in  taking  in  a  manner  which  would 
have  been  robbery,  this  vessel,  the  Joseph,  they  were  also 
fighting  against  the  United  States  of  America,  they  have  not 
committed  the  crime  of  piracy. 

Now,  if  the  Court  please,  and  gentlemen  of  the  Jury,  let 
us,  before  we  explore  and  dissect  these  propositions, — be 
fore  we  discover  how  utterly  subversive  they  are  of  any 
notions  of  Government,  of  fixity  in  the  interpretation  of  the 
law,  or  certainty  in  the  enforcement  of  it, — let  us  see  what 
you  will  fairly  consider  as  being  proved,  as  matter  of  fact, 
concerning  the  condition  of  affairs  in  this  country.     Let  us 
see  what  legal  discrimination  or  description  of  this  state  of 
things  is  likely  to  be  significant  and  instructive,  in  deter 
mining  the  power  and  authority  of  the  Government,  and  the 
responsibility  of  these  defendants.     They  began  with  an 
Ordinance  of  South  Carolina,  passed  on  the  20th  of  Decem 
ber  of  last  year,  which,  in  form  and  substance,  simply  an 
nulled  the  Ordinance  of  that  State,  with  which,  as  they  say, 
they  ratified  or  accepted  the  Constitution  of  the  United 
States.     They  then  went  on  with  similar  proceedings  on  the 
part  of  the  States  of  Georgia,  Alabama,  Mississippi,  and  Flor 
ida,  showing  the  establishment  and  adoption  of  a  Provisional 
Constitution,  by  which  they  constituted  and  called  themselves 
the  Confederate  States  of  America.     They  proved,  then, 
the  organization  of  the  Government,  the  election  of  Mr. 
Davis  and  Mr.  Stephens  as  President  and  Vice-President, 
and  the  appointment  of  Secretaries  of  War,  and  of  the 
Navy,  and  other  portions  of  the  civil  establishment.     They 
proved,  then,  the  occurrences  at  Fort  Sumter,  and  gave 
particular  evidence  of  the  original  acts  at  Charleston — the 
firing  on  the  Star  of  the  West,  and  the  correspondence  which 
then  took  place  between  Major  Anderson  and  the  Governor 


132         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

of  South  Carolina.  They  then  went  on  to  prove  the  evacu 
ation  of  Fort  Moultrie;  the  storming  of  Fort  Sumter;  the 
Proclamation  of  the  President  of  the  United  States,  of  the 
15th  of  April,  calling  for  75,000  troops;  Mr.  Davis's  Proc 
lamation,  of  the  17th  of  April,  inviting  privateers;  and  then 
the  President's  Proclamation,  of  the  19th  of  April,  denounc 
ing  the  punishment  of  piracy  against  privateers,  and  putting 
under  blockade  the  coasts  of  the  revolted  States.  The  laws 
about  privateering  passed  by  what  is  called  the  Confederate 
Government,  have,  also,  been  read  to  you;  and  this  seems  to 
complete  the  documentary,  and  constitutional,  and  statu 
tory  proceedings  in  that  disaffected  portion  of  the  country. 
But  what  do  the  prisoners  prove  further?  That  an  actual 
military  conflict  and  collision  commenced,  has  proceeded, 
and  is  now  raging  in  this  country,  wherein  we  find,  not  one 
section  of  the  country  engaged  in  a  military  contest  with 
another  section  of  the  country — not  two  contending  factions, 
in  the  phrase  of  Vattel,  dividing  the  nation  for  the  isake  of 
national  power — but  the  Government  of  the  United  States, 
still  standing,  without  the  diminution  of  one  tittle  of  its 
power  and  dignity — without  the  displacement  or  disturb 
ance  of  a  single  function  of  its  executive,  of  its  legislative, 
of  its  judicial  establishments — without  the  disturbance  or 
the  defection  of  its  army  or  its  navy — without  any  displace 
ment  in  or  among  the  nations  of  the  world — without  any 
retreat,  on  its  part,  or  any  repulsion,  on  the  part  of  any  force 
whatever,  from  its  general  control  over  the  affairs  of  the 
nation,  over  all  its  relations  to  foreign  States,  over  the  high 
seas,  and  over  every  part  of  the  United  States  themselves, 
in  their  whole  length  and  breadth,  except  just  so  far  as 
military  occupation  and  military  contest  have  controlled 
the  peaceful  maintenance  of  the  authority  and  laws  of  the 
Government. 

Now,  this  may  be  conceded  for  all  sides  of  the  controversy. 
I  do  not  claim  any  more  than  these  proofs  show,  and  what 


THE  SAVANNAH  PRIVATEERS  133 

we  all  know  to  be  true;  and  I  am  but  fair  in  conceding  that 
they  do  show  all  the  proportions  and  extent  which  make  up  a 
contest  by  the  forces  of  the  nation,  as  a  nation,  against  an 
armed  array,  with  all  the  form  and  circumstances,  and  with 
a  number  and  strength,  which  make  up  military  aggression 
and  military  attack  on  the  part  of  these  revolting  or  disaf 
fected  communities  or  people. 

Now,  some  observations  have  been  made,  at  various  stages 
of  this  argument,  of  the  course  the  Government  has  taken 
in  its  declaration  of  a  blockade,  and  in  its  seizure  of  prizes 
by  its  armed  vessels,  and  its  bringing  them  before  the  Prize 
Courts;  and  my  learned  friend,  Mr.  Brady,  has  done  me  the 
favor  to  allude  to  some  particular  occasion  on  which  I,  on 
behalf  of  the  Government,  in  the  Admiralty  Court,  have 
contended  for  certain  principles,  which  would  lead  to  the 
judicial  confiscation  of  prizes,  under  the  law  of  the  land,  or 
under  the  law  of  nations  adopted  and  enforced  as  part  of 
the  law  of  the  land.  Well,  now,  gentlemen,  I  understand 
and  agree  that,  for  certain  purposes,  there  is  a  condition  of 
war  which  forces  itself  on  the  attention  and  duty  of  Govern 
ments,  and  calls  on  them  to  exert  the  power  and  force  of 
war  for  their  protection  and  maintenance.  And  I  have  had 
occasion  to  contend — and  the  learned  Courts  have  decided — 
that  this  nation,  undertaking  to  suppress  an  armed  military 
rebellion,  which  arrays  itself,  by  land  and  by  sea,  in  the  forms 
of  naval  and  military  attack,  has  a  right  to  exert — under  the 
necessary  principles  which  control  and  require  the  action 
of  a  nation  for  its  own  preservation,  in  these  circumstances  of 
danger  and  of  peril — not  only  the  usual  magisterial  force  of  the 
country — not  only  the  usual  criminal  laws — not  only  such 
civil  posses  or  aids  to  the  officers  of  the  law  as  may  be  ob 
tained  for  their  assistance — but  to  take  the  army  and  the 
navy,  the  strength  and  manhood  of  the  nation,  which  it  can 
rally  around  it,  and  in  every  form,  and  by  every  authority, 
human  and  divine,  suppress  and  reduce  a  revolt,  a  rebellion, 


134         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

a  treason,  that  seeks  to  overthrow  this  Government  in,  at 
least,  a  large  portion  of  its  territory,  and  among  a  large  por 
tion  of  its  people.  In  doing  so,  it  may  resort — as  it  has  re 
sorted — to  the  method  of  a  warlike  blockade,  which,  by 
mere  force  of  naval  obstruction,  closes  the  harbors  of  the 
disaffected  portion  of  the  country  against  all  commerce. 
Having  done  that,  it  has  a  right,  in  its  Admiralty  Courts, 
to  adjudicate  upon  and  condemn  as  prizes,  under  the  laws 
of  blockade,  all  vessels  that  shall  seek  to  violate  the  block 
ade.  Nor,  gentlemen,  have  I  ever  denied — nor  shall  I  here 
deny — that,  when  the  proportions  of  a  civil  dissension,  or 
controversy,  come  to  the  port  and  dignity  of  war,  good 
sense  and  common  intelligence  require  the  Government  to 
recognize  it  as  a  question  of  fact,  according  to  the  actual 
circumstances  of  the  case,  and  to  act  accordingly.  I, 
therefore,  have  no  difficulty  in  conceding  that,  outside  of 
any  question  of  law  and  right — outside  of  any  question  as  to 
whether  there  is  a  Government  down  there,  whether  nominal 
or  real,  or  that  can  be  described  as  having  any  consistency 
of  any  kind,  under  our  law  and  our  Government — there  is 
prevailing  in  this  country  a  controversy,  which  is  carried  on 
by  the  methods,  and  which  has  the  proportions  and  extent, 
of  what  we  call  war. 

War,  gentlemen,  as  distinguished  from  peace,  is  so  dis 
tinguished  by  this  proposition — that  it  is  a  condition  in 
which  force  on  one  side  and  force  on  the  other  are  the  means 
used  in  the  actual  prosecution  of  the  controversy.  Now, 
gentlemen,  if  the  Court  please,  I  believe  that  that  is  all 
that  can  be  claimed,  and  all  that  has  been  claimed,  on  behalf 
of  these  prisoners,  in  regard  to  the  actual  facts,  and  the 
condition  of  things  in  this  country.  And  I  admit  that,  if 
this  Government  of  ours  were  not  a  party  to  this  controversy, 
— if  it  looked  on  it  from  the  outside,  as  England  and  France 
have  done, — our  Government  would  have  had  the  full  right 
to  treat  these  contending  parties,  in  its  Courts  and  before 


THE  SAVANNAH  PRIVATEERS  135 

its  laws,  as  belligerents,  engaged  in  hostilities,  as  it  would 
have  had  an  equal  right  to  take  the  opposite  course.  Which 
course  it  would  have  taken,  I  neither  know,  nor  should  you 
require  to  know. 

But,  I  answer  to  the  whole  of  this,  if  the  Court  please, 
that  it  is  a  war  in  which  the  Government  recognizes  no  right 
whatever  on  the  part  of  the  persons  with  whom  it  is  con 
tending;  and  that,  in  the  eye  of  the  law,  as  well  as  in  the  eye 
of  reason  and  sound  political  morality,  every  person  who  has, 
from  the  beginning  of  the  first  act  of  levying  war  against 
the  United  States  until  now,  taken  part  in  this  war,  actively 
and  effectively,  in  any  form — who  has  adhered  to  the  rebels — 
who  has  given  aid,  information,  or  help  of  any  kind,  wherever 
he  lives,  whether  he  sends  it  from  New  Hampshire  or  New 
York,  from  Wisconsin  or  Baltimore — whether  he  be  found 
within  or  without  the  armed  lines — is,  in  his  own  overt  ac 
tions,  or  open  espousal  of  the  side  of  this  warring  power, 
against  the  Government  of  the  United  States,  a  traitor  and 
a  rebel.  I  do  not  know  that  there  is  any  proposition  what 
ever,  of  law,  or  any  authority  whatever,  that  has  been  ad 
duced  by  my  learned  friends,  in  which  they  will  claim,  as 
matter  of  law,  that  they  are  not  rebels.  I  invited  the  atten 
tion  of  my  learned  friends,  as  I  purposed  to  call  that  of  the 
Court,  to  the  fact,  that  the  difficulty  about  all  this  business 
was,  that  the  plea  of  authority  or  of  war,  which  these  pris 
oners  interposed  against  the  crime  of  piracy,  was  nothing 
but  a  plea  of  their  implication  in  treason.  I  would  like  to 
hear  a  sober  and  solemn  proposition  from  any  lawyer,  that  a 
Government,  as  matter  of  law,  and  a  Court,  as  matter  of 
law,  cannot  proceed  on  an  infraction  of  a  law  against  violence 
either  to  person  or  property,  instead  of  proceeding  on  an 
indictment  for  treason.  The  facts  proved  must,  of  course, 
maintain  the  personal  crime;  and  there  are  many  degrees  of 
treason,  or  facts  of  treason,  which  do  not  include  violent  crime. 
But,  to  say  that  a  person  who  has  acted  as  a  rebel  cannot 


136         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

be  indicted  as  an  assassin,  or  that  a  man  who  has  acted,  on 
the  high  seas,  as  a  pirate,  if  our  statutes  so  pronounce  him, 
cannot  be  indicted,  tried  and  convicted  as  a  pirate,  because  he 
could  plead,  as  the  shield  of  his  piracy,  that  he  committed 
it  as  part  of  his  treason,  is,  to  my  apprehension,  entirely  new, 
and  inconsistent  with  the  first  principles  of  justice. 

Now,  this  very  statute  of  piracy  is  really  a  general  Crimes 
Act.  The  first  section  is : 

"If  any  person  or  persons  owing  allegiance  to  the  United 
States  of  America  shall  levy  war  against  them,  or  shall  ad 
here  to  their  enemies,  giving  them  aid  and  comfort  within 
the  United  States,  or  elsewhere,  and  shall  be  thereof  con 
victed,"  "such  person  or  persons  shall  be  adjudged  guilty 
of  treason  against  the  United  States,  and  shall  suffer  death." 

Now,  you  will  observe  that  treason  is  not  a  defence  against 
piracy;  nor  is  good  faith  in  treason  a  defence  against  treason, 
or  a  defence  against  piracy.  What  would  be  the  posture  of 
these  prisoners,  if,  instead  of  being  indicted  for  piracy, 
they  were  indicted  for  treason?  Should  we  then  hear 
anything  about  this  notion  that  there  was  a  war  raging, 
and  that  they  were  a  p/arty  engaged  in  the  war?  Why,  that 
is  the  very  definition  of  treason.  Against  whom  is  the  war? 
Against  the  United  States  of  America.  Did  you  owe  alle 
giance  to  the  United  States  of  America?  Yes,  the  citizens 
did;  and  I  need  not  say  to  you,  gentlemen,  that  those  resi 
dents  who  are  not  citizens  owe  allegiance.  There  is  no 
dispute  about  that.  Those  foreigners  who  are  living  here 
unnaturalized  are  just  as  much  guilty  of  treason,  if  they  act 
treasonably  against  the  Government,  as  any  of  our  own 
citizens  can  be.  That  is  the  law  of  England,  the  law  of 
treason,  the  necessary  law  of  civilized  communities.  If  we 
are  hospitable,  if  we  make  no  distinction,  as  we  do  not,  in 
this  country,  between  citizens,  and  foreigners  resident  here 
and  protected  by  our  laws,  it  is  very  clear  we  cannot  make 
any  distinction  when  we  come  to  the  question  of  who  are 


THE  SAVANNAH  PRIVATEERS  137 

faithful  to  the  laws.  So,  therefore,  if  they  were  indicted  for 
treason,  what  would  become  of  all  of  this  defence?  It 
would  be  simply  a  confession  in  open  Court  that  they  were 
guilty  of  treason.  Well,  then,  if  they  fell  back  on  the  prop 
osition, — "We  thought,  in  our  consciences  and  judgments, 
that  either  these  States  had  a  right  to  secede,  or  that 
they  had  a  right  to  carry  on  a  revolution;  that  they  were 
oppressed,  and  were  entitled  to  assert  themselves  against 
an  oppressive  Government,  and  we,  in  good  faith,  and  with 
a  fair  expectation  of  success,  entered  into  it," — what  would 
become  of  them?  The  answer  would  be,  "Good  faith  in 
your  attempt  to  overthrow  the  Government  does  not  excuse 
you  from  responsibility  for  the  crime  of  attempting  it." 
Our  statute  is  made  for  the  purpose  of  protecting  our  Gov 
ernment  against  efforts  made,  in  good  faith  or  in  bad  faith, 
for  its  overthrow. 

And  now,  in  this  connection,  gentlemen,  as  your  atten 
tion,  as  well  as  that  of  the  Court,  has  been  repeatedly  called 
to  it,  let  me  advert  again  to  the  citation  from  that  en 
lightened  public  writer,  Vattel,  who  has  done  as  much, 
perhaps,  as  our  learned  friends  have  suggested,  to  place  on  a 
sure  foundation  the  amelioration  of  the  law  of  nations  in 
time  of  war,  and  their  intercourse  in  time  of  peace,  as  any 
writer  and  thinker  whom  our  race  has  produced.  You  re 
member,  that  he  asks — How  shall  it  be,  when  two  contend 
ing  factions  divide  a  State,  in  all  the  forms  and  extent  of 
civil  war — what  shall  be  the  right  and  what  the  duty  of  a 
sovereign  in  this  regard?  Shall  he  put  himself  on  the  pride 
of  a  king,  or  on  the  flattery  of  a  courtier,  and  say,  I  am  still 
monarch,  and  will  enforce  against  every  one  of  this  multi 
tude  engaged  in  this  rebellion  the  strict  penalties  of  my  laws? 
Vattel  reasons,  and  reasons  very  properly:  You  must  submit 
to  the  principles  of  humanity  and  of  justice;  you  must  gov 
ern  your  conduct  by  them,  and  not  proceed  to  an  extermina 
tion  of  your  subjects  because  they  have  revolted,  whether 


138         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

with  or  without  cause.  You  must  not  enforce  the  sanctions 
of  your  Government,  or  maintain  its  authority,  on  methods 
which  would  produce  a  destruction  of  your  people.  And  you 
must  not  further,  by  insisting,  under  the  enforced  circum 
stances  which  surround  you,  on  the  extreme  and  logical  right 
of  a  king,  furnish  occasion  for  the  contending  rebels,  who 
have  their  moments  of  success  and  power,  as  well  as  you,  to 
retaliate  on  your  loyal  people,  victims  of  their  struggle  on 
your  behalf,  and  thrown  into  the  power  of  your  rebellious 
subjects, — to  retaliate,  I  say,  on  them  the  same  extreme  pen 
alties,  without  right,  without  law,  but  by  mere  power,  which 
you  have  exerted  under  your  claim  of  right. 

And  now,  gentlemen  of  the  Jury,  as  the  Court  very  well 
understands,  this  general  reasoning,  which  should  govern 
the  conduct  of  a  Sovereign,  or  of  a  Government,  against  a 
mere  local  insurrection,  does  not  touch  the  question  as  to 
whether  the  law  of  a  nation  in  which  the  sovereign  presides, 
and  in  violation  of  which  the  crime  of  the  rebels  has  been 
perpetrated,  shall  be  enforced.  There  has  been,  certainly 
in  modern  times,  no  occasion  when  a  Sovereign  has  not 
drawn,  in  his  discretion,  and  under  the  influence  of  these 
principles  of  humanity  and  justice,  this  distinction,  and  has 
not  interposed  the  shield  of  his  own  mercy  between  the  of 
fences  of  misled  and  misguided  masses  of  his  people  and  of 
fended  laws.  We  know  the  difference  between  law  and 
its  condemnation,  and  mercy  and  its  saving  grace;  and  we 
know  that  every  Government  exercises  its  discretion.  And, 
I  should  like  to  know  why  these  learned  counsel,  who  are 
seeking  to  interpose,  as  a  legal  defence  on  the  part  of  a 
criminal,  the  principles  of  policy  and  mercy  which  should 
guide  the  Government,  are  disposed  to  insist  that  this 
Government,  in  its  prosecutions  and  its  trials,  has  shown  a 
disposition  to  absolve  great  masses  of  criminals  from  the 
penalties  of  its  laws.  I  should  like  to  know,  when  my 
learned  friend  Mr.  Brady,  near  the  close  of  his  remarks,  sug- 


THE  SAVANNAH  PRIVATEERS  139 

gested  that  there  had  been  no  trial  for  treason,  whether  this 
Government,  from  the  first  steps  in  the  outbreak,  down  to  the 
final  and  extensive  rage  of  the  war,  has  not  foreborne  to  take 
satisfaction  for  the  wrongs  committed  against  it,  and  has 
not  been  disposed  to  carry  on  and  sustain  the  strength  of 
the  Government,  without  bloody  sacrifices  for  its  main 
tenance,  and  for  the  offended  justice  of  the  land.  But  it  is 
certainly  very  strange  if,  when  a  Government  influenced  by 
those  principles  of  humanity  of  which  Vattel  speaks,  and 
which  my  learned  friends  so  much  insist  upon,  has  foreborne, 
except  in  signal  instances,  or,  if  you  please,  in  single  instances 
that  are  not  signal,  to  assert  the  standard  of  the  law's 
authority  and  of  the  Government's  right, — that  it  may  be 
seen  that  the  sword  of  justice,  although  kept  sheathed  for 
the  most  part,  has  yet  not  rusted  in  its  scabbard,  and  that 
the  Government  is  not  faithless  to  itself,  or  to  its  laws,  its 
powers,  or  its  duties,  in  these  particular  prosecutions  that 
have  been  carried,  one  to  its  conclusion  in  Philadelphia, 
and  the  other  to  this  stage  of  its  progress,  here, — it  is  strange, 
indeed,  that  the  appeal  is  to  be  thrust  upon  it — "Do  not 
include  the  masses  of  the  misguided  men!"  and,  when  it 
yields  so  mercifully  to  that  appeal,  and  says — "I  will  limit 
myself  to  the  least  maintenance  and  assertion  of  a  right," 
that  the  answer  is  to  come  back:  "Why,  how  execrable — how 
abominable,  to  make  distinctions  of  that  kind!" 

But,  gentlemen,  the  mercy  of  the  Government,  as  I  have 
said  to  you,  remains  after  conviction,  as  well  as  in  its  deter 
mination  not  to  press  numerous  trials  for  treason;  but  it  is 
an  attribute,  both  in  forbearing  to  try  and  in  forbearing  to 
execute,  which  is  safely  left  where  the  precedents  that  are 
to  shape  the  authority  of  law  cannot  be  urged  against  its 
exercise.  Now,  I  look  upon  the  conduct  and  duty  of  the 
Government  on  somewhat  larger  considerations  than  have 
been  pressed  before  you  here.  The  Government,  it  is  said, 
does  not  desire  the  conviction  of  these  men,  or,  at  least, 


140         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

should  not  desire  it.  The  Government  does  not  desire  the 
blood  of  any  of  its  misguided  people.  The  Government — 
the  prosecution — should  have  no  passion,  no  animosities, 
in  this  or  in  any  other  case;  and  our  learned  friends  have 
done  us  the  favor  to  say  that  the  case  is  presented  to  you  as 
the  law  should  require  it  to  be;  that  you,  and  all,  are  unaf 
fected  and  unimpeded  in  your  judgment;  and  that,  with  a 
full  hearing  of  what  could  be  said  on  the  part  of  these  crimi 
nals,  you  have  the  case  candidly  and  openly  before  you. 
Now,  gentlemen,  the  Government,  although  having  a  large 
measure  of  discretion,  has  no  right,  in  a  country  where  the 
Government  is  one  wholly  of  law,  to  repeal  the  criminal 
law,  and  no  right  to  leave  it  without  presenting  it  to  the  ob 
servation,  the  understanding,  and  the  recognition  of  all  its 
citizens,  whether  in  rebellion  or  not,  in  its  majesty,  in  its 
might,  and  in  its  impartiality.  The  Government  has  be 
hind  it  the  people,  and.  it  has  behind  it  all  the  great  forces 
which  are  breathing  on  our  agitated  society,  all  the  strong 
passions,  all  the  deep  emotions,  all  the  powerful  convictions, 
which  impress  the  loyal  people  of  this  country  as  to  the 
outrage,  as  to  the  wickedness,  as  to  the  perils  of  this  great 
rebellion.  Do  you  not  recollect  how,  when  the  proclama 
tion  of  Mr.  Davis  invited  marauders  to  prey  upon  our  com 
merce,  from  whatever  quarter  and  from  whatever  motives — 
(patriotism  and  duty  not  being  requisite  before  they  would 
be  received) — the  cry  of  the  wounded  sensibilities  of  a  great 
commercial  people  burst  upon  this  whole  scene  of  conflict? 
What  was  there  that  as  a  nation  we  had  more  to  be  proud  of  > 
more  to  be  glad  for  in  our  history,  than  our  flag?  To  think 
that  in  an  early  stage  of  what  was  claimed  to  be  first  a  con 
stitutional,  and  then  a  peaceful,  and  then  a  deliberate  politi 
cal  agitation  and  maintenance  of  right,  this  last  extreme  act, 
the  arming  of  private  persons  against  private  property  on 
the  sea,  was  appealed  to  before  even  a  force  was  drawn  on 
the  field  on  behalf  of  the  United  States  of  America!  The 


THE  SAVANNAH  PRIVATEERS  141 

proclamation  of  the  President  was  but  two  days  old  when 
privateers  were  invited  to  rush  to  the  standard.  The 
indignation  of  the  community,  the  sense  of  outrage  and 
hatred  was  so  severe  and  so  strong,  that  at  that  time,  if  the 
sentiment  of  the  people  had  been  consulted,  it  would  have 
found  a  true  expression  in  what  was  asserted  in  the  news 
papers,  in  public  speeches,  in  private  conversations — that 
the  duty  of  every  merchantman  and  of  every  armed  vessel 
of  the  country,  which  arrested  any  of  these  so-called  pri 
vateers,  under  this  new  commission,  without  a  nation  and 
without  authority,  was  to  treat  them  as  pirates  caught  in 
the  act,  and  execute  them  at  the  yard-arm  by  a  summary 
justice.  Well,  I  need  not  say  to  you,  gentlemen,  that  I  am 
sure  you  and  I  and  all  of  us  would  have  had  occasion  to 
regret,  in  every  sense,  as  wrong,  as  violent,  as  unnecessary, 
and,  therefore,  as  wholly  unjustifiable,  on  the  part  of  a 
powerful  nation  like  ourselves,  any  such  rash  execution  of 
the  penalties  of  the  law  of  nations,  and  of  the  law  of  the  land, 
while  our  Government  had  power  on  the  sea,  had  authority 
on  the  land,  had  Courts  and  laws  and  juries  under  its  author 
ity  to  inquire  and  look  into  the  transaction. 

The  public  passions  on  this  subject  being  all  cool  at  this 
time,  after  an  interval  of  four  months  or  more  from  the  ar 
rest,  we  are  here  trying  this  case.  Yet  my  learned  friends 
can  find  complaint  against  the  mercy  of  the  Government 
and  its  justice,  that  it  brings  any  prosecution;  and  great 
complaint  is  made  before  you,  without  the  least  ground  or 
cause,  as  it  seems  to  me,  that  the  prosecution  is  pressed  in  a 
time  of  war,  when  the  sentiments  of  the  community  are 
supposed  to  be  inflamed. 

Well,  gentlemen,  what  is  the  duty  of  Government,  when 
it  has  brought  in  prisoners  arrested  on  the  high  seas,  but  to 
deliver  them  promptly  to  the  civil  authorities,  as  was  done 
in  this  case — and  then,  in  the  language  of  the  Constitution, 
which  secures  the  right  to  them,  to  give  them  a  speedy  and 


142         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

impartial  trial?  That  it  is  impartial,  they  all  confess.  How 
speedy  is  it?  They  say,  they  regret  that  it  proceeds  in  time 
of  war.  Surely,  our  learned  friends  do  not  wish  to  be  under 
stood  as  having  had  denied  to  them  in  this  Court  any  ap 
plication  which  they  have  made  for  postponement.  The 
promptness  of  the  judicial  and  prosecuting  authorities  here 
had  produced  this  indictment  in  the  month  of  June,  I 
believe,  the  very  month  in  which  the  prisoners  were  arrested, 
or  certainly  early  in  July;  and  then  the  Government  was 
ready  to  proceed  with  the  trial,  so  far  as  I  am  advised.  But, 
at  any  rate,  an  application — a  very  proper  and  necessary 
application — was  made  by  our  learned  friends,  that  the  trial 
should  be  postponed  till,  I  believe,  the  very  day  on  which  it 
was  brought  on.  That  application  was  not  objected  to,  was 
acquiesced  in,  and  the  time  was  fixed,  and  no  further  sugges 
tion  was  made  that  the  prisoners  desired  further  delay;  and, 
if  the  Government  had  undertaken  to  ask  for  further  delay, 
on  the  ground  of  being  unprepared,  there  was  no  fact  to 
sustain  any  such  application.  If  it  was  the  wish  of  the 
prisoners,  or  for  their  convenience,  that  there  should  be 
further  delay,  it  was  for  them  to  suggest  it.  But,  being 
entitled  by  the  Constitution  to  a  speedy  as  well  as  an  im 
partial  trial,  and  the  day  being  fixed  by  themselves  on  which 
they  would  be  ready,  and  they  being  considered  ready,  and 
no  difficulty  or  embarrassment  in  the  way  of  proof  having 
been  suggested  on  the  part  of  the  Government,  it  seems  to 
me  very  strange  that  this  regret  should  be  expressed,  unless 
it  should  take  that  form  of  regret  which  all  of  us  partici 
pate  in,  that  the  war  is  not  over.  That,  I  agree,  is  a  sub 
ject  of  regret.  But  how  there  has  ever  been  any  pressure, 
or  any — the  least — exercise  of  authority  adverse  to  their 
wishes  in  this  matter,  it  is  very  difficult  for  me  to  under 
stand. 

Now,  gentlemen,  I  approach  a  part  of  this  discussion  which 
I  confess  I  would  gladly  decline.     I  have  not  the  least  ob- 


THE  SAVANNAH  PRIVATEERS  143 

jection — no  one,  I  am  sure,  can  feel  the  least  objection — to 
the  privilege  or  supposed  duty  of  counsel,  who  are  defending 
prisoners  on  a  grave  charge, — certainly  not  in  a  case  which 
includes,  as  a  possible  result,  the  penalty  of  their  clients' 
lives, — to  go  into  all  the  inquiries,  discussions  and  arguments, 
however  extensive,  varied,  or  remote,  that  can  affect  the 
judgment  of  the  Jury,  properly  or  fairly,  or  that  can  rightly  be 
invoked.  But,  I  confess  that,  looking  at  the  very  inter 
esting,  able,  extensive  and  numerous  arguments,  theories 
and  illustrations,  that  have  been  presented  in  succession  by, 
I  think,  in  one  form  or  another,  seven  counsel  for  these 
prisoners,  as  the  introduction  into  a  judicial  forum,  and 
before  a  Jury,  of  inquiries  concerning  the  theories  of  Gov 
ernment,  the  course  of  politics,  the  occasion  of  strife  on  one 
side  or  the  other,  within  the  region  of  politics  and  the  region 
of  peace,  in  any  portion  of  the  great  communities  that  com 
posed  this  powerful  nation — in  that  point  of  view,  I  aver 
they  seem  to  me  very  little  inviting  and  instructive,  as  they 
certainly  are  extremely  unusual  in  forensic  discussions. 
Certainly,  gentlemen  of  the  Jury,  we  must  conceive  some 
starting  point  somewhere  in  the  stability  of  human  affairs, 
as  they  are  entrusted  to  the  control  and  defence  of  human 
Governments.  But,  in  the  very  persistent  and  resolute 
views  of  the  learned  counsel  upon  this  point— first  on  the 
right  of  secession  as  constitutional;  second,  if  not  con 
stitutional,  as  being  supposed  by  somebody  to  be  constitu 
tional;  third,  on  the  right  of  revolution  as  existing  on  the 
part  of  a  people  oppressed,  or  deeming  themselves  oppressed, 
to  try  their  strength  in  the  overthrow  of  the  subsisting 
Government;  fourth,  on  the  right  to  press  the  discontents 
inside  of  civil  war;  and  then  finally  and  at  last,  that  whoever 
thinks  the  Government  oppresses  him,  or  thinks  that  a 
better  Government  would  suit  his  case,  has  not  only  the 
right  to  try  the  venture,  but  that,  unsuccessful,  or  at  any 
stage  of  the  effort,  his  right  becomes  so  complete  that  the 


144         SPEECHES  OP  WILLIAM  MAXWELL  EVARTS 

Government  must  and  should  surrender  at  once  and  to 
every  attempt — I  see  only  what  is  equivalent  to  a  subver 
sion  of  Government,'and  to  saying  that  the  right  of  revolution, 
in  substance  and  in  fact,  involves  the  right  of  Government 
in  the  first  place,  and  its  duty  in  the  second  place,  to  sur 
render  to  the  revolutionist,  and  to  treat  him  as  having 
overthrown  it  in  point  of  law,  and  in  contemplation  of  its 
duty.  That  is  a  proposition  which  I  cannot  understand. 

Nevertheless,  gentlemen,  these  subjects  have  been  so  ex 
tensively  opened,  and  in  so  many  points  attacks  have  been 
made  upon  what  seems  to  me  not  only  the  very  vital  struc 
ture  and  necessary  support  of  this,  our  Government,  but  the 
very  necessary  and  indispensable  support  of  any  Govern 
ment  whatever,  and  we  have  been  so  distinctly  challenged, 
both  on  the  ground  of  an  absolute  right  to  overthrow  this 
Government,  whenever  any  State  thinks  fit — and,  next, 
upon  the  clear  right,  on  general  principles  of  human  equity, 
of  each  State  to  raise  itself  against  any  Government  with 
which  it  is  dissatisfied — and  upon  the  general  right  of  con 
science — as  well  as  on  the  complete  support  by  what  has 
been  assumed  to  have  been  the  parallel  case,  on  all  those 
principles,  of  the  conduct  of  the  Colonies  which  became  the 
United  States  of  America  and  established  our  Government — 
that  I  shall  find  it  necessary,  in  the  discharge  of  my  duty,  to 
say  something,  however  briefly,  on  that  subject.  Now, 
gentlemen,  these  are  novel  discussions  in  a  Court  of  Justice, 
within  the  United  States  of  America.  We  have  talked  about 
the  oppressions  of  other  nations,  and  rejoiced  in  our  exemp 
tion  from  all  of  them,  under  the  free,  and  benignant,  and 
powerful  Government  which  was,  by  the  favor  of  Providence, 
established  by  the  wisdom,  and  courage,  and  virtue  of  our 
ancestors.  We  had,  for  more  than  two  generations,  reposed 
under  the  shadow  of  our  all-protecting  Government,  with 
the  same  conscious  security  as  under  the  firmament  of  the 
heavens.  We  knew,  to  be  sure,  that  for  all  that  made  life 


THE  SAVANNAH  PRIVATEERS  145 

hopeful  and  valuable — for  all  that  made  life  possible — we 
depended  upon  the  all-protecting  power,  and  the  continued 
favor  of  Divine  Providence.  We  knew,  just  as  well,  that, 
without  civil  society,  without  equal  and  benignant  laws, 
without  the  administration  of  justice,  without  the  main 
tenance  of  commerce,  without  a  suitable  Government,  with 
out  a  powerful  nationality,  all  the  motives  and  springs  of 
human  exertion  and  labor  would  be  dried  up  at  their  source. 
But  we  felt  no  more  secure  in  the  Divine  promise  that  "sum 
mer  and  winter,  seed-time  and  harvest,"  should  not  cease^ 
than  we  did  in  the  permanent  endurance  of  that  great  fabric 
established  by  the  wisdom  and  the  courage  of  a  renowned 
ancestry,  to  be  the  habitation  of  liberty  and  justice  for  us 
and  our  children  to  every  generation.  We  felt  no  solicitude 
whatever  that  this  great  structure  of  our  constitutional 
liberties  should  pass  away  as  a  scroll,  or  its  firm  power  crumble 
in  the  dust.  But,  by  the  actual  circumstances  of  our  situa 
tion, — and,  if  not  by  them,  certainly  by  the  destructive 
theories  which  are  presented  for  your  consideration, — it 
becomes  necessary  for  us,  as  citizens,  and,  in  the  judgment 
at  least  of  the  learned  counsel,  for  these  prisoners,  for  you, 
and  for  this  learned  Court,  in  the  conduct  of  this  trial,  and  in 
the  disposition  of  the  issue  of  "guilty  "  or  "not  guilty  "  as  to 
these  prisoners,  to  pay  some  attention  to  these  considerations. 
If,  in  the  order  of  this  discussion,  gentlemen,  I  should  not 
seem  to  follow  in  any  degree,  or  even  to  include  by  name, 
many  of  the  propositions,  of  the  distinctions,  and  of  the 
arguments  which  our  learned  friends  have  pressed  against 
the  whole  solidity,  the  whole  character,  the  whole  per 
manence,  the  whole  strength  of  our  Government,  I  yet  think 
you  will  find  that  I  have  included  the  principal  ideas  they 
have  advanced,  and  have  commented  upon  the  views  that 
seem  to  us — at  least  so  far  as  we  think  them  to  be  at  all 
connected  with  this  case — suitable  to  be  considered. 

Now,  gentlemen,  let  us  start  with  this  business  where  our 
12 


146         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

friends,  in  their  argument,  where  many  of  the  philosophers, 
and  partisans,  and  statesmen  of  the  Southern  people,  have 
found  many  of  their  grounds  of  support.  Let  us  start  with 
this  very  subject  of  the  American  Revolution,  with  the  condi 
tion  that  we  were  in,  and  with  the  place  that  we  found  our 
selves  raised  to,  among  the  nations  of  the  earth,  as  the  result 
of  that  great  transaction  in  the  affairs  of  men.  What  were 
we  before  the  Revolution  commenced?  Was  any  one  of 
the  original  thirteen  States  out  of  which  our  nation  was  made, 
and  which,  previous  to  the  Revolution,  were  Colonies  of 
Great  Britain — was  any  one  of  them  an  independent  nation 
at  the  time  they  all  slumbered  under  the  protection  of  the 
British  Crown?  Why,  not  only  had  they  not  the  least 
pretension  to  be  a  nation,  any  of  them,  but  they  had  scarcely 
the  position  of  a  thoroughly  incorporated  part  of  the  great 
nation  of  England.  Now,  how  did  they  stand  towards  the 
British  power,  and  under  what  motives  of  dignity,  and  im 
portance,  and  necessity  did  they  undertake  their  severance 
from  the  parent  country?  With  all  their  history  of  coloniza 
tion,  the  settlement  of  their  different  charters,  and  the 
changes  they  went  through,  I  will  not  detain  you.  For 
general  purposes,  we  all  know  enough,  and  I,  certainly  not 
more  than  the  rest  of  you.  This,  however,  was  their  con 
dition.  The  population  were  all  subjects  of  the  British 
Crown;  and  they  all  had  forms  of  local  Government  which 
they  had  derived  from  the  British  Crown;  and  they  claimed 
and  possessed,  as  I  suppose,  all  the  civil  and  political  rights 
of  Englishmen.  They  were  not  subject  to  any  despotic 
power,  but  claimed  and  possessed  that  right  to  a  share  in 
the  Government,  which  was  the  privilege  of  Englishmen,  and 
under  which  they  protected  themselves  against  the  encroach 
ment  of  the  Crown.  But,  in  England,  as  you  know,  the 
monarch  was  attended  by  his  Houses  of  Parliament,  and 
all  the  power  of  the  Government  was  controlled  by  the 
people,  through  their  representatives  in  the  House  of  Com- 


THE  SAVANNAH  PRIVATEERS  147 

mons.  And  how?  Why,  because,  although  the  King  had 
prerogatives,  executive  authority,  a  vast  degree  of  pomp  and 
wealth,  and  of  strength,  yet  the  people,  represented  in  the 
House  of  Commons,  by  controlling  the  question  of  taxation, 
held  all  the  wealth  of  the  kingdom — the  power  of  the  purse, 
as  it  was  described — and  without  supplies,  without  money 
for  the  army,  for  the  navy,  for  all  the  purposes  of  Govern 
ment,  what  authority,  actual  and  effective,  had  the  Crown 
of  England?  These  were  the  rights  of  Englishmen;  these 
made  them  a  free  people,  not  subject  to  despotic  power. 
They  cherished  it  and  loved  it.  Now,  what  relation  did 
these  Colonies,  becoming  off-shoots  from  the  great  fabric 
of  the  national  frame  of  England,  bring  with  them,  and 
assert,  and  enjoy  here?  Why,  the  king  was  their  king, 
just  as  he  was  the  king  of  the  people  whom  they  left  in 
England,  but  they  had  their  legislatures  here,  which  made 
their  laws  for  them  in  Massachusetts,  in  Connecticut,  in 
Virginia,  in  South  Carolina,  and  in  the  rest  of  these  provinces; 
and  among  these  laws,  in  the  power  of  law-making,  they  had 
asserted,  and  possessed,  and  enjoyed  the  right  of  laying 
taxes  for  the  expenses  and  charges  of  their  Government. 
They  formed  no  part  of  the  Parliament  of  England,  but, 
as  the  subjects  of  England  within  the  four  seas  were  obe 
dient  to  the  king,  and  were  represented  in  the  Parliament 
that  made  laws  for  them,  the  Colonies  of  America  were  sub 
ject  to  the  king,  but  had  local  legislatures  to  pass  laws, 
raise  and  levy  taxes,  and  graduate  the  expenses  and  con 
tributions  which  they  would  bear. 

Now,  gentlemen,  it  is  quite  true  that  the  local  legislatures 
were  subject  to  the  revision,  as  to  their  statutes,  to  a  certain 
extent,  of  the  sovereign  power  of  England.  The  king  had 
the  veto  power — as  he  had  the  veto  power  over  Acts  of  Par 
liament- — the  power  of  revision — and  other  powers,  as  may 
have  been  the  casual  outgrowth  of  the  forms  of  different 
charters.  In  an  evil  hour — as  these  Colonies,  from  being 


148         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

poor,  despised,  and  feeble  communities,  gained  a  strength 
and  numbers  that  attracted  the  attention  of  the  Crown  of 
England,  as  important  and  productive  communities,  capable 
of  being  taxed — the  Government  undertook  to  assert,  as  the 
principle  of  the  Constitution  of  England,  that  the  king  and 
Parliament,  sitting  in  London,  could  tax  as  they  pleased, 
when  they  pleased,  and  in  the  form,  and  on  the  subjects, 
and  to  the  amount,  they  pleased,  the  free  people  of  these 
Colonies. 

Now,  you  will  understand,  there  was  not  an  incidental, 
a  casual,  a  limited  subject  of  controversy,  of  right,  of  danger, 
but  there  was  an  attack  upon  the  first  principles  of  English 
liberty,  which  prevented  the  English  people  from  being  the 
subjects  of  a  despot,  and  an  attempt  to  make  us  subject  to 
a  despotic  Government,  in  which  we  took  no  share,  and  in 
which  we  had  no  control  of  the  power  of  the  purse.  What 
matter  did  it  make  to  us  that,  instead  of  there  being  a 
despotic  authority,  in  which  we  had  no  share  or  representa 
tion  of  vote  or  voice,  exercised  by  the  king  alone,  it  was 
exercised  by  the  king  and  Parliament?  They  were  both  of 
them  powers  of  Government  that  were  away  from  us,  and  in 
which  we  had  no  share;  and  we,  then,  forewarned  by  the 
voices  of  the  great  statesmen  whose  sentiments  have  been 
read  to  you,  saw  in  time  that,  whatever  might  be  said  or 
thought  of  the  particular  exercise  of  authority,  the  proposi 
tion  was  that  we  were  not  entitled  to  the  privilege  and  free 
dom  of  Englishmen,  but  that  the  power  was  confined  to 
those  who  resided  within  the  four  seas — within  the  islands 
that  made  up  that  Kingdom — and  that  we  were  provinces 
which  their  king  and  their  Parliament  governed.  Therefore, 
you  may  call  it  a  question  of  taxation,  and  my  friend  may 
call  it  "a  question  of  three  pence  a  pound  on  tea;"  but  it  was 
the  proposition  that  the  power  of  the  purse,  in  this  country, 
resided  in  England.  We  had  not  been  accustomed  to  it. 
We  did  not  believe  in  it.  And  our  first  revolutionary  act 


THE  SAVANNAH  PRIVATEERS  149 

was  to  fight  for  our  rights  as  Englishmen  (subject  to  the 
King,  whose  power  we  admitted),  and  to  assert  the  rights 
of  our  local  legislature  in  the  overthrow  of  this  usurpation  of 
Parliament.  Now,  of  the  course  which  we  took  before  we 
resorted  to  the  violence  and  vehemence  of  war,  I  shall  have 
hereafter  occasion  to  present  you,  very  briefly  and  concha 
sively,  a  condensed  recital;  but  this  notion,  that  we  here 
claimed  any  right  to  rise  up  against  a  Government  that  was 
in  accordance  with  our  rights,  and  was  such  as  we  had  made 
it,  and  as  we  enjoyed  it,  equally  with  all  others  over  whom  it 
was  exercised — which  lies  at  the  bottom  of  the  revolt  in  this 
country — had  not  the  least  place,  or  the  opportunity  of  a 
place,  in  our  relations  with  England.  We  expected  and 
desired,  as  the  correspondence  of  Washington  shows — 
as  some  of  the  observations  of  Hamilton,  I  think,  read  in 
your  presence  by  the  learned  counsel,  show — as  the  records 
of  history  show= — we  expected  to  establish  security  for  our 
selves  under  the  British  Crown,  and  as  a  part  of  the  British 
Empire,  and  to  maintain  the  right  of  Englishmen,  to  wit, 
the  right  of  legislation  and  taxation  where  we  were  repre 
sented.  But  the  parent  Government,  against  the  voice  and 
counsels  of  such  statesmen  as  Burke,  and  the  warnings  of 
such  powerful  champions  of  liberty  as  Chatham,  under 
took  to  insist,  upon  the  extreme  logic  of  their  Constitution, 
that  we  were  British  subjects,  and  that  the  king  and  Par 
liament  governed  all  British  subjects;  and  they  had  a 
theory,  I  believe,  that  we  were  represented  in  Parliament, 
as  one  English  jurist  put  it,  in  the  fact  that  all  the  grants  in 
all  the  Colonies  were,  under  the  force  of  English  law,  "to 
have  and  to  hold  as  the  Manor  of  East  Greenwich,"  and 
that,  as  the  Manor  of  East  Greenwich  was  represented  in 
Parliament,  all  this  people  were  represented.  But  this  did 
not  suit  our  notions.  The  lawyers  of  this  country,  the 
Judges  of  this  country  and  many  of  the  lawyers  of  England, 
as  mere  matter  of  strict  legal  right,  held  that  the  American 


150         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

view  of  the  Constitution  of  England,  and  of  the  rights  of 
Englishmen  who  enjoy  it,  was  the  true  one.  But,  at  any  rate, 
it  was  not  upon  an  irritation  about  public  sentiment;  nor  was 
it  upon  the  pressure  of  public  taxes ;  nor  because  we  did  not 
constitute  a  majority  of  Parliament;  nor  anything  of  that 
kind;  but  it  was  on  clear  criteria  of  whether  we  were  slaves, 
as  Hamilton  presents  it,  or  part  of  the  free  people  of  a  Gov 
ernment.  We,  therefore,  by  degrees,  and  somewhat  uncon 
scious,  perhaps,  of  our  own  enlightened  progress,  but  yet 
wisely,  fortunately,  prosperously,  determined  upon  our  inde 
pendence,  as  the  necessary  means  of  securing  those  rights 
which  were  denied  to  us  under  the  Constitution  of  our  country. 
Now,  there  was  not  the  least  pretence  of  the  right  of  a 
people  to  overthrow  a  Government  because  they  so  desire 
— which  seems  to  be  the  proposition  here — because  they 
think  they  do  not  like  it — and  because  there  are  some  points 
or  difficulties  in  its  working  that  they  would  like  to  have 
adjusted.  No;  it  was  on  the  mere  proposition  that  the 
working  of  the  administration  in  England  was  converting 
us  into  subjects,  not  of  the  Crown,  with  the  rights  of  English 
men,  but  subjects  of  the  despotic  power  of  Parliament  and 
the  King  of  England.  Now,  how  did  we  go  to  work,  and 
what  was  the  result  of  that  Revolution?  In  the  first  place, 
did  we  ever  become  thirteen  nations?  Was  Massachusetts 
a  nation?  Was  South  Carolina  a  nation?  Did  either  of 
them  ever  declare  its  independence,  or  ever  engage  in  a  war, 
by  itself  and  of  itself,  against  England,  to  accomplish  its 
independence?  No,  never;  the  first  and  preliminary  step 
before  independence  was  union.  The  circumstances  of  the 
Colonies,  we  may  well  believe,  made  it  absolutely  necessary 
that  they  should  settle  beforehand  the  question  of  whether 
they  could  combine  themselves  into  one  effectual,  national 
force,  to  contend  with  England,  before  they  undertook  to 
fight  her.  It  was  pretty  plain  that  Massachusetts  could  not 
conquer  England,  or  its  own  independence,  and  that  Vir- 


THE  SAVANNAH  PRIVATEERS  151 

ginia  could  not  do  so,  and  that  the  New  England  States 
alone  could  not  do  it,  and  that  the  Southern  States  alone 
could  not  do  it.  It  was  quite  plain  that  New  York,  Penn 
sylvania  and  New  Jersey,  alone,  could  not  do  it;  and,  there 
fore,  in  the  very  womb,  as  it  were,  and  preceding  our 
birth  as  a  nation,  we  were  articulated  together  into  the 
frame  of  one  people,  one  community,  one  nationality.  Now, 
however  imperfectly,  and  however  clumsily,  and  however 
unsuitably  we  were  first  connected,  and  however  necessary 
and  serious  the  changes  which  substituted  for  that  inchoate 
shape  of  nationality  the  complete,  firm,  noble  and  perfect 
structure  which  made  us  one  people  as  the  United  States  of 
America,  yet  you  will  find,  in  all  the  documents,  and  in  all  the 
history,  that  there  was  a  United  States  of  America,  in  some 
form  represented,  before  there  was  anything  like  a  separa 
tion,  on  the  part  of  any  of  the  Colonies,  from  the  parent 
country,  except  in  these  discontents,  and  these  efforts  at  an 
assertion  of  our  liberties,  which  had  a  local  origin. 

The  great  part  of  the  argument  of  my  learned  friend  rests 
upon  the  fact  that  these  States  were  nations,  each  one  of  them, 
once  upon  a  time;  and,  that,  having  made  for  themselves 
this  Government,  they  have  remained  nations,  in  it  and 
under  it,  ever  since,  subject  only  to  the  Confederate  authority, 
in  the  terms  of  a  certain  instrument  called  a  compact,  and 
with  the  reserved  right  of  nationality  ready,  at  all  times,  to 
spring  forth  and  manifest  itself  in  complete  separation  of 
any  one  of  the  States  from  the  rest.  And  I  find,  strangely 
enough,  in  the  argument  as  well  of  the  promoters  of  these 
political  movements  at  the  South  as  in  the  voice  of  my 
learned  friends  who  have  commented  on  this  subject,  a 
reference  to  the  early  diplomacy  of  the  United  States,  as 
indicative  of  the  fact  that  they  were  separate  and  independent 
communities — regarded  as  such  by  the  contracting  Powers 
into  connection  with  whom  they  were  brought  by  their 
treaties  and  conventions,  and,  more  particularly,  in  the 


152         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

definitive  treaty  whereby  their  independence  was  recog 
nized  by  Great  Britain.  Now,  if  the  Court  please,  both 
upon  the  point  (if  it  can  be  called  a  point,  connected  with 
your  judicial  inquiry)  that  these  Colonies  were  formed  into 
a  Union  before  they  secured  their  national  independence, 
and  that  there  was  no  moment  of  time  wherein  they  were 
not  included,  either  as  United  Colonies,  under  the  parental 
protection  of  Great  Britain,  or  as  united  in  a  struggling 
Provisional  Government,  or  in  the  perfect  Government  of 
the  Confederation,  and,  finally,  under  the  present  Constitu 
tion — I  apprehend  that  there  can  be  no  doubt  that  our  di 
plomacy,  commencing,  in  1778,  with  the  Treaty  of  Alliance 
with  France,  contains  the  same  enumeration  of  States  that 
is  so  much  relied  upon  by  the  reasoners  for  independent 
nationality  on  the  part  of  all  the  States.  In  the  preamble 
to  the  Treaty,  found  at  page  6  of  the  8th  volume  of  the 
Statutes  at  Large,  the  language  was:  "The  Most  Christian 
King  and  the  United  States  of  North  America,  to  wit,  New 
Hampshire,  etc.,  having  this  day  concluded,"  etc.  The 
United  States  are  here  treated  as  a  strictly  single  power, 
with  whom  his  Most  Christian  Majesty  comes  into  league; 
and  the  credentials  or  ratifications  pursued  the  same  form. 
The  Treaty  of  Commerce  with  the  same  nation,  made  at  the 
same  time,  follows  the  same  idea;  and  the  Treaty  with  the 
Netherlands,  made  in  1782,  contains  the  same  enumeration 
of  the  States,  and  speaks  of  each  of  the  contracting  parties 
as  being  "countries."  The  Convention  with  the  Nether 
lands,  on  page  50  of  the  same  volume,  and  which  was  a  part 
of  the  same  diplomatic  arrangement,  and  made  at  the  same 
time,  speaks,  in  Article  1,  of  the  vessels  of  the  "two  nations." 
Now,  the  only  argument  of  my  learned  friends,  on  the  two 
treaties  with  Great  Britain,  of  November,  1782,  and  Sep 
tember,  1783,  is,  that  they  are  an  agreement  between 
England  and  the  thirteen  nations ;  and  it  is  founded  upon  the 
fact,  that  the  United  States  of  America,  after  being  described 


THE  SAVANNAH  PRIVATEERS  153 

as  such,  are  enumerated  under  a  "viz."  as  being  so  many 
provinces.  Now,  the  5th  and  6th  articles  of  that  Conven 
tion  of  1782  with  the  Netherlands  speak  of  "the  vessels  of 
war  and  privateers  of  one  and  of  the  other  of  the  two  na 
tions."  So  that,  pending  the  Revolution,  we  certainly, 
in  the  only  acts  of  nationality  that  were  possible  for  a  con 
tending  power,  set  ourselves  forth  as  only  one  nation,  and 
were  so  recognized.  And  the  same  views  are  derivable  from 
the  language  of  the  Provisional  Treaty  with  Great  Britain  of 
November,  1782,  and  of  the  Definitive  Treaty  of  Peace 
with  Great  Britain  of  September,  1783,  which  Treaties  are 
to  be  found  at  pages  54  and  80  of  the  same  8th  volume.  The 
Preamble  to  the  latter  Treaty  recites: 

"It  having  pleased  the  Divine  Providence  to  dispose  the 
hearts  of  the  most  serene  and  most  potent  Prince  George  the 
Third,  &c.,  and  of  the  United  States  of  America  to  forget  all 
past  misunderstandings  and  differences  that  have  unhappily 
interrupted  the  good  correspondence  and  friendship,  which 
they  mutually  wish  to  restore;  and  to  establish  such  a  bene 
ficial  and  satisfactory  intercourse  between  the  two  countries, 
&c." 

And  then  comes  the  1st  article,  which  is  identical  in  lan 
guage  with  the  Treaty  with  the  Netherlands,  of  1782:  "  His 
Britannic  Majesty  acknowledges  the  said  United  States, 
viz.,  New  Hampshire,  etc.,  to  be  free,  sovereign  and  inde 
pendent  States." 

The  United  States  had  previously,  in  the  Treaty,  been 
spoken  of  as  one  country,  and  the  language  I  have  just 
quoted  is  only  a  statement  of  the  provinces  of  which  they 
were  composed;  for,  we  all  know,  as  matter  of  history,  that 
there  were  other  British  provinces  that  might  have  joined  in 
this  Revolution,  and  might,  perhaps,  have  been  included  in 
the  settlement  of  peace;  and  this  rendered  it  suitable  and 
necessary  that  the  provinces  whose  independence  was  ac 
knowledged  should  be  specifically  described.  But,  in  the 


154         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

2d  article,  so  far  from  the  separateness  of  the  nationalities 
with  which  the  convention  was  made  being  at  all  recognized, 
that  important  article,  which  is  the  one  of  boundaries,  goes 
on  to  bound  the  entire  nation  as  one  undivided  and  integral 
territory,  without  the  least  attention  to  the  divisions  between 
them.  It  may  be  very  well  to  say  that  England  was  only 
concerned  to  have  one  continuous  boundary,  coterminous  to 
her  own  possessions,  described,  and  that  that  was  the  object 
of  the  geographical  bounding;  but  the  entire  Western, 
Eastern,  and  Southern  boundaries  are  gone  through  as 
those  of  one  integral  nation.  The  3rd  article  speaks,  again, 
of  securing  certain  rights  to  the  citizens  or  inhabitants  of 
"both  countries."  Now,  that  "country"  and  "nation,"  in 
the  language  of  diplomacy,  are  descriptive,  not  of  territory, 
in  either  case,  but  of  the  nationality,  admits  of  no  discussion ; 
and  yet,  I  believe  that  the  most  substantial  of  all  the  cita 
tions  and  of  all  the  propositions  from  the  documentary  evi 
dence  of  the  Revolution,  which  seeks  to  make  out  the  fact 
that  we  came  into  being  as  thirteen  nations,  grows  out  of 
this  British  Treaty,  which,  in  its  preamble,  takes  notice  of 
but  one  country,  called  the  United  States  of  America,  and, 
then,  in  recognition  of  the  United  States  of  America,  names 
the  States  under  a  "viz." — they  being  included  in  the  single 
collective  nation  before  mentioned  as  the  United  States. 

Now,  gentlemen,  after  the  Revolution  had  completed  our 
independence,  how  were  we  left  as  respects  our  rights,  our 
interests,  our  hopes,  and  our  prospects  on  this  very  subject 
of  nationality?  Why,  we  were  left  in  this  condition — that 
we  always  had  been  accustomed  to  a  parent  or  general 
Government,  and  to  a  local  subordinate  administration  of 
our  domestic  affairs  within  the  limits  of  our  particular  prov 
inces.  Under  the  good  fortune,  as  well  as  the  great  wisdom 
which  saw  that  this  arrangement — a  new  one — quite  a  new 
one  in  the  affairs  of  men — now  that  we  were  completely 
independent,  and  capable  of  being  masters  of  our  whole 


THE  SAVANNAH  PRIVATEERS  155 

Government,  both  local  and  general,  admitted  of  none  of 
these  discontents  and  dangers  which  belonged  to  our  being 
subject  collectively  to  the  dominion  of  a  remote  power  be 
yond  the  seas — under  the  good  fortune  and  great  wisdom 
of  that  opportunity,  we  undertook  and  determined  to  estab 
lish,  and  had  already  established  provisionally,  a  complete 
Government,  which  we  supposed  would  answer  the  purpose 
of  having  a  general  representation  and  protection  of  our 
selves  toward  the  world  at  large,  and  yet  would  limit  the 
local  power  and  authority,  consistently  with  good  and  free 
Government,  as  respected  populations  homogeneous  and 
acquainted  with  each  other,  and  with  their  own  wants  and 
the  methods  of  supplying  them. 

The  Articles  of  Confederation,  framed  during  the  Revolu 
tion,  ratified  at  different  times  during  its  progress  and  at  its 
close,  was  a  Government  under  which  we  subsisted — for  how 
long?  Until  1787 — but  four  years  from  the  time  that  we  had 
an  independent  nationality — we  were  satisfied  with  the 
imperfect  Union  that  our  provisional  Government  had  orig 
inated,  and  that  we  had  shaped  into  somewhat  more  con 
sistency  under  the  Articles  of  Confederation.  Why  did  we 
not  stay  under  that?  We  were  a  feeble  community.  We 
had  but  little  population,  but  little  wealth.  We  had  but  few 
occasions  of  discontent  that  belong  to  great,  and  wealthy, 
and  populous  States.  But  the  fault,  the  difficulty,  was, 
that  there  were  in  the  Confederation  too  many  features 
which  our  learned  friends,  their  clients  here,  and  theoretical 
teachers  of  theirs  elsewhere,  contend,  make  the  distinctive 
character  of  the  American  Constitution,  as  finally  developed 
and  established.  The  difficulty  was  that,  although  we  were 
apparently  and  intentionally  a  nation,  as  respected  the  rest 
of  the  world,  and  for  all  the  purposes  of  common  interest 
and  common  protection  and  common  development,  yet  this 
element  of  separate  independency,  and  these  views  that  the 
Government  thus  framed  operated,  not  as  a  Government  over 


156         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

individuals,  but  as  a  Government  over  local  communities  in 
an  organized  form,  made  its  working  imperfect,  impossible, 
and  the  necessary  occasion  of  dissension,  and  weakness,  and 
hostility,  and  left  it  without  the  least  power,  except  by  con 
tinued  force  and  war,  to  maintain  nationality. 

Now,  it  was  not  because  we  were  sovereigns,  all  of  us,  be 
cause  we  had  departed  from  sovereignty.  There  was  not 
the  least  right  in  any  State  to  send  an  ambassador,  or  make  a 
treaty,  or  have  anything  signed;  but  the  vice  was,  that  the 
General  Government  had  no  power  or  authority,  directly, 
on  the  citizens  of  the  States,  but  had  to  send  its  mandates  for 
contributions  to  the  common  treasury,  and  its  requirements 
for  quotas  for  the  common  army  and  the  common  navy, 
directly  to  the  States.  Now,  I  tarry  no  longer  on  this  than 
to  say,  that  the  brief  experience  of  four  years  showed  that  it 
was  an  impossible  proposition  for  a  Government,  that  there 
should  be  in  it  even  these  imperfect,  clipped  and  crippled 
independencies,  that  were  made  out  of  the  original  provinces 
and  called  States.  In  1787,  the  great  Convention  had  its 
origin,  and  in  1789  the  adoption  of  the  Constitution  made 
something  that  was  supposed  to  be,  and  entitled  to  be,  and 
our  citizens  required  to  be,  as  completely  different,  on  this 
question  of  double  sovereignty,  and  divided  allegiance,  and 
equal  right  of  the  nation  to  require  and  of  a  State  to  refuse, 
as  was  possible.  If,  indeed,  instead  of  the  Confederation 
having  changed  itself  from  an  imperfect  connection  of  States 
limited  and  reduced  in  sovereignty,  into  a  Government 
where  the  nation  is  the  coequal  and  co-ordinate  power  (as 
our  friends  express  it)  of  every  State  in  it,  why  surely  our 
brief  experience  of  weakness  and  disorder,  and  of  contempt, 
such  as  was  visited  upon  us  by  the  various  nations  with 
whom  we  had  made  treaties,  that  we  could  not  fulfil  them, 
found,  in  the  practical  wisdom  of  the  intelligent  American 
people,  but  a  very  imperfect  and  unsatisfactory  solution,  if 
the  theories  of  the  learned  counsel  are  correct,  that  these 


THE  SAVANNAH  PRIVATEERS  157 

United  States  are,  on  the  one  part,  a  power,  and  on  the  other 
part,  thirty-four  different  powers,  all  sovereign,  and  the  two 
having  complete  rights  of  sovereignty,  and  dividing  the 
allegiance  of  our  citizens  in  every  part  of  our  territory. 

Now,  the  language  of  the  Constitution  is  familiar  to  all 
of  you.  That  it  embodies  the  principle  of  a  General  Gov 
ernment  acting  upon  all  the  States,  and  upon  you,  and  upon 
me,  and  upon  every  one  in  the  United  States;  that  it  has  its 
own  established  Courts — its  own  mandate  by  which  jurors 
are  brought  together — its  own  laws  upon  all  the  subjects 
that  are  attributed  to  its  authority;  that  there  is  an  estab 
lishment  known  as  the  Supreme  Court,  which,  with  the 
appropriate  inferior  establishments,  controls  and  finally 
disposes  of  every  question  of  law,  and  right,  and  political 
power,  and  political  duty;  and  that  this  adjusted  system  of 
one  nation  with  distributed  local  power,  is,  in  its  working, 
adequate  to  all  the  varied  occasions  which  human  life  devel 
ops — we  all  know.  We  have  lived  under  it,  we  have  pros 
pered  under  it,  we  have  been  made  a  great  nation,  a  united 
people,  free,  happy,  and  powerful. 

Now,  gentlemen,  it  is  said — and  several  points  in  our 
history  have  been  appealed  to,  as  well  as  the  disturbances 
that  have  torn  our  country  for  the  last  year — that  this  com 
plete  and  independent  sovereignty  of  the  States  has  been 
recognized.  Now,  there  have  been  several  occasions  on 
which  this  subject  has  come  up.  The  first  was  under  the 
administration  of  the  first  successor  of  General  Washington — 
John  Adams — when  the  famous  Virginia  and  Kentucky 
resolutions  had  their  origin.  About  these  one  of  my  learned 
friends  gave  you  a  very  extensive  discussion,  and  another 
frankly  admitted  that  he  could  not  understand  the  doctrine 
of  co-ordinate,  equal  sovereignty  of  two  powers  within  the 
same  State.  On  the  subject  of  these  Virginia  resolutions, 
and  on  the  question  of  whether  they  were  the  recognized 
doctrines  of  this  Government,  I  ask  your  attention  to  but 


158         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

one  consideration  of  the  most  conclusive  character,  and  to 
be  disposed  of  in  the  briefest  possible  space. 

The  proposition  of  the  Virginia  resolutions  was,  that  the 
States  who  are  parties  to  the  compact  have  the  right  and  are 
in  duty  bound  to  interpose  to  arrest  the  progress  of  the  evil 
(that  is,  when  unconstitutional  laws  are  passed),  and  to 
maintain,  within  their  respective  limits,  the  authority,  rights, 
and  liberties  pertaining  to  them.  That  is  to  say,  that  where 
any  law  is  passed  by  the  Congress  of  the  United  States, 
which  the  State  of  Virginia,  in  its  wise  and  independent 
judgment,  pronounces  to  be  in  excess  of  the  Constitutional 
power,  it  is  its  right  and  duty  to  interpose.  How?  By 
secession?  No.  By  rebellion?  No.  But  by  protecting 
and  maintaining,  within  its  territory,  the  authority,  rights, 
and  liberties  pertaining  to  it.  Now,  these  resolutions  grew 
out  of  what?  Certain  laws,  one  called  the  "Alien"  and  the 
other  the  "Sedition"  law,  rendered  necessary  by  the  dis 
turbances  communicated  by  the  French  revolution  to  this 
country,  and  which  necessarily  came  within  the  doctrine  of 
my  friend,  Mr.  Larocque,  that  there  is  not  the  least  right 
of  secession  when  the  laws  are  capable  of  being  the  subject  of 
judicial  investigation.  Well,  those  laws  were  capable  of 
being  the  subject  of  judicial  investigation,  and  the  resolutions 
did  not  claim  the  right  of  secession,  but  of  nullification. 
My  learned  friend  says  that  the  doctrine  of  "secession"  has 
no  ground. 

But  what  was  the  fate  of  the  "Virginia  resolutions"? 
For  Virginia  did  not  pretend  that  she  had  all  the  wisdom, 
and  virtue,  and  patriotism  of  the  country  within  her  borders. 
She  sent  these  resolutions  to  every  State  in  the  Union,  and 
desired  the  opinion  of  their  legislatures  and  their  governors 
on  the  subject.  Kentucky  passed  similar  resolutions;  and 
Kentucky,  you  will  notice,  had  just  been  made  a  State,  in 
1793 — an  off-shoot  from  Virginia;  and,  as  the  gentleman  has 
told  you,  Mr.  Madison  wrote  the  resolutions  of  Virginia,  and 


THE  SAVANNAH  PRIVATEERS  159 

Mr.  Jefferson  those  of  Kentucky.  So  that  there  was  not  any 
great  independent  support,  in  either  State,  for  the  views, 
thus  identical,  and  thus  promulgated  by  these  two  Virginians. 
Their  great  patriotism,  and  wisdom,  and  intelligence,  are  a 
part  of  the  inheritance  we  are  all  proud  of.  But,  when  the 
appeal  was  sent  for  concurrence  to  New  York,  South  Caro 
lina,  Georgia,  Massachusetts,  and  the  New  England  States, 
what  was  the  result?  Why,  Kentucky,  in  1799,  regrets 
that,  of  all  the  States,  none,  except  Virginia,  acquiesced  in 
the  doctrines;  and  the  answers  of  every  one  of  the  States 
that  made  response  are  contained  in  the  record  which  also 
contains  the  Virginia  and  Kentucky  resolutions.  And  that 
doctrine  there  exploded,  and  exploded  forever,  until  its 
recurrence  in  the  shape  of  nullification,  in  South  Carolina, 
as  part  of  the  doctrines  of  this  Constitution. 

We  had  another  pressure  on  the  subject  of  local  dissatis 
faction,  in  1812;  and  then  the  seat  of  discontent  and  heresy 
was  New  England.  I  do  not  contend,  and  never  did  con 
tend,  in  any  views  I  have  taken  of  the  history  of  affairs  in 
this  country,  that  the  people  of  any  portion  of  it  have  a 
right  to  set  themselves  in  judgment  as  superiors  over  the 
people  of  any  other  portion.  I  never  have  had  any  doubt 
that,  just  as  circumstances  press  on  the  interests  of  one  com 
munity  or  another,  just  so  are  they  likely  to  carry  their 
theoretical  opinions  on  the  questions  of  the  power  of  their 
Government  and  of  their  own  rights,  and  just  so  to  express 
themselves.  So  long  as  they  confine  themselves  to  resolu 
tions  and  politics,  to  the  hustings,  and  to  the  elections, 
nobody  cares  very  much  what  their  political  theories  are. 
But  my  learned  friend  Mr.  Brady  has  taken  the  greatest 
satisfaction  in  showing,  that  this  notion  of  the  co-ordinate 
authority  of  the  States  with  the  nation,  found  its  expression 
and  adoption,  during  the  war  of  1812,  in  some  of  the  States 
of  New  England.  Well,  gentlemen,  I  believe  that  all  sober 
and  sensible  people  agree  that,  whether  or  not  the  New  Eng- 


160         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

land  States  carried  their  heresies  to  the  extent  of  justifying 
the  nullification  of  a  law,  or  the  revocation  of  their  assent  to 
the  Confederacy,  and  their  withdrawal  from  the  common 
Government,  the  doctrines  there  maintained  were  not  suit 
able  for  the  strength  and  the  harmony,  for  the  unity  and 
the  permanency,  of  the  American  Government.  I  believe 
that  the  condemnation  of  those  principles  that  followed, 
from  South  Carolina,  from  Virginia,  from  New  York,  and 
from  other  parts  of  the  country,  and  the  resistance  which  a 
large,  and  important,  and  intelligent,  and  influential  portion 
of  their  own  local  community  manifested,  exterminated 
those  heresies  forever  from  the  New  England  mind. 

Next,  we  come  to  1832,  and  then,  under  the  special  instruc 
tion  and  authority  of  a  great  Southern  statesman  (Mr.  Cal- 
houn)  whose  acuteness  and  power  of  reasoning  have  certainly 
been  scarcely,  if  at  all,  surpassed  by  any  of  our  great  men, 
the  State  of  South  Carolina  undertook,  not  to  secede,  but 
to  nullify ;  and  yet  Mr.  Larocque  says,  that  this  pet  doctrine 
of  Mr.  Calhoun, — nullification,  and  nothing  else, — is  the 
absurdest  thing  ever  presented  in  this  country;  and  we  are 
fortunate,  I  suppose,  in  not  having  wrecked  our  Union  upon 
that  doctrine. 

Now  we  come,  next,  to  the  doctrine  of  secession.  Nulli 
fication,  rejected  in  1798  by  all  the  States,  except  Virginia 
and  Kentucky,  and  never  revived  by  them, — nullification, 
rejected  by  the  sober  sense  of  the  American  People, — nulli 
fication  was  put  down  by  the  strong  will  of  Jackson,  in  1832, 
— having  no  place  to  disturb  the  strength  and  hopes  and 
future  of  this  country.  And  what  do  we  find  is  the  proposi 
tion  now  put  forward,  as  matter  of  law,  to  your  Honors,  to 
relieve  armed  and  open  war  from  the  penalties  of  treason, 
and  from  the  condemnation  of  a  lesser  crime?  What  is  it,  as 
unfolded  here  by  the  learned  advocate  (Mr.  Larocque),  with 
all  his  acuteness,  but  so  manifest  an  absurdity  that  its  recog 
nition  by  a  lawyer,  or  an  intelligent  Jury  seems  almost  impos- 


THE  SAVANNAH  PRIVATEERS  161 

sible?  It  is  this:  This  Union  has  its  power,  its  authority, 
its  laws.  It  acts  directly  upon  the  individuals  inside  of 
every  State,  and  they  owe  it  allegiance  as  their  Government. 
It  is  a  Government  which  is  limited,  in  the  exercise  of  its 
power,  to  certain  general  and  common  objects,  not  inter 
fering  with  the  domestic  affairs  of  any  community.  Within 
that  same  State  there  is  a  State  Government,  framed  into 
this  General  Government,  to  be  certainly  a  part  of  it  in  its 
territories,  a  part  of  it  in  its  population,  a  part  of  it  in  every 
organization,  and  every  department  of  its  Government. 
The  whole  body  of  its  administration  of  law,  the  Legislature 
and  the  Executive,  are  bound,  by  a  particular  oath,  to  sus 
tain  the  Constitution  of  the  United  States.  But,  although 
it  is  true  that  the  State  Government  has  authority  only 
where  the  United  States  Government  has  not,  and  that  the 
United  States  have  authority  only  where  the  State  has  not; 
and  although  there  is  a  written  Constitution,  which  says  what 
the  line  of  separation  is;  and  although  there  is  a  Supreme 
Court,  which,  when  they  come  into  collision,  has  authority  to 
determine  between  them,  and  no  case  whatever,  affecting 
the  right  or  the  conduct  of  any  individual  man,  can  be  sub 
tracted  from  its  decision;  yet,  when  there  comes  a  difference 
between  the  State  and  the  General  Government,  the  State 
has  the  moral  right,  and  political  right,  to  insist  upon  its 
view,  and  to  maintain  it  by  force  of  arms,  and  the  General 
Government  has  the  right  to  insist  upon  its  view,  and  to 
maintain  it  by  force  of  arms.  And  then  we  have  this  poor 
predicament  for  every  citizen  of  that  unlucky  State, — that 
he  is  bound  by  allegiance,  and  under  the  penalty  of  treason, 
to  follow  each  and  both  of  these  powers.  And  as,  should  he 
follow  the  State,  the  United  States,  if  it  be  treason,  would 
hang  him,  and,  if  he  should  follow  the  United  States,  the 
State,  if  it  be  treason,  would  hang  him,  this  peculiar  and 
whimsical  result  is  produced, — that  when  the  United  States 
undertake  to  hang  him  for  treason  his  answer  is — "Why,  if  I 

13 


162        SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

had  not  done  "as  I  did,  the  State  would  have  hanged  me 
for  treason,  and,  surely  I  cannot  be  compelled  to  be  hanged 
one  way  or  the  other — so,  I  must  be  protected  from  hanging, 
as  to  both!"  Well,  that,  I  admit,  is  a  sensible  way  to  get 
out  of  the  difficulty,  for  the  man  and  for  the  argument,  if  you 
can  do  it.  But  it  is  a  peculiar  result,  to  start  with  two  sover 
eigns,  each  of  which  has  a  right  over  the  citizen,  and  to  end 
with  the  citizen's  right  to  choose  which  he  shall  serve,  and 
to  throw  it  in  the  face  of  offended  majesty  and  justice — 
"Why,  your  statute  of  treason  is  repealed  as  against  me, 
because  the  State,  of  which  I  am  a  subject,  has  counseled  a 
particular  course  of  conduct!" 

Now,  gentlemen,  my  learned  friend  qualifies  even  this 
theory — which  probably  must  fall  within  the  condemnation 
of  the  perhaps  somewhat  harsh  and  rough  suggestion  of 
Mr.  Justice  Grier,  of  a  "political  platitude" — by  the  sug 
gestion  that  it  only  applies  to  questions  where  the  United 
States  cannot  settle  the  controversy.  And  when  my  learned 
friend  is  looking  around  for  an  instance  or  an  occasion  that  is 
likely  to  arise  in  human  affairs,  and  in  this  nation,  and  in 
this  time  of  ours,  he  is  obliged  to  resort  to  the  most  extraord 
inary  and  extravagant  proposition  by  way  of  illustration, 
and  one  that  has,  in  itself,  so  many  of  the  ingredients  of 
remoteness  and  impossibility,  that  you  can  hardly  think  a 
Government  deficient  in  not  having  provided  for  it.  He 
says,  first — suppose  we  have  a  President,  who  is  a  Massa 
chusetts  man.  Well,  that  is  not  very  likely  in  the  course 
of  politics  at  present.  And  then,  suppose  that  he  is  a  bad 
man, — which,  probably,  my  learned  friends  would  think 
not  as  unlikely  as  I  should  wish  it  to  be.  And,  then,  sup 
pose  he  should  undertake  to  build  up  Boston,  in  its  commerce, 
at  the  expense  of  New  York;  and  should  put  a  blockading 
squadron  outside  of  New  York,  by  mere  force  of  caprice 
and  tyranny,  without  any  law,  and  without  any  provision 
for  the  payment  of  the  men  of  the  Navy,  or  any  commission 


THE  SAVANNAH  PRIVATEERS  163 

or  authority  to  any  of  them  under  which  they  could  find 
they  were  protected  for  what  they  should  do,  in  actually  and 
effectually  blockading  our  port.     My  learned  friend  acknowl 
edges  that  this  is  a  pretty  violent  sort  of  suggestion,  and 
that  no  man  in  his  senses  would  pretend  to  do  such  a  thing, 
however  bad  he  was,  unless  he  could  find  a  reasonable  sort 
of  pretext  for  it.     Therefore  he  would,  wisely  and  craftily, 
pretend  that  he  had  private  advices  that  England  was  going 
to  bombard  New  York.     Now  that  is  the  practical  case  cre 
ated  by  my  learned  friend's  ingenuity  and  reflection,  as  a  con 
tingency  in  which  this  contest  by  war  between  New  York 
and  the  United  States  of  America  would  be  the  only  prac 
tical  and  sensible  mode  of  protecting  our  commerce,  and 
keeping  you  and  me  in  the  enjoyment  of  our  rights  as  citi 
zens  of  the  State  of  New  York.     Well,  to  begin  with,  if  we 
had  a  fleet  off  New  York  harbor,  what  is  there  that  would 
require  vessels  to  go  to  Boston  instead  of  to  Philadelphia, 
Baltimore,  and  other  places  that  are  open?     In  the  second 
place,  how  long  could  we  be  at  war,  and  how  great  an 
army  could  we  raise  in  New  York,  to  put   in   the  field 
against  the  Federal  Government,  before  this  pretence  of 
private  advices  that  England  was  going  to  bombard  New 
York,  would  pass  away,  and  the  naked  deformity  of  this 
bad  Massachusetts  President  be  exposed?     Why,  gentle 
men,  it  is  too  true  to  need  suggestion,  that  the  wisdom  which 
made  this  a  Government  over  all  individual  citizens,  and 
made  every  case  of  right  and  interest  that  touches  the  pocket 
and  person  of  any  man  in  it  a  question  of  judicial  settlement, 
made  it  a  Government  which  requires  for  the  solution  of 
none  of  the  controversies  within  it,  a  resort  to  the  last  appeal 
— to  battle,  and  the  right  of  kings. 

SECOND  DAY'S  ARGUMENT 

Gentlemen  of  the  Jury:  In  resuming  the  course  of  my 
remarks,  already  necessarily  drawn  to  a  very  considerable 
length,  I  must  recall  to  your  attention  the  point  that  I  had 


164         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

reached  when  the  Court  adjourned.  I  was  speaking  of  this 
right  of  secession,  as  inconsistent  with  the  frame,  the  purpose, 
and  the  occasion  upon  which  the  General  Government  was 
formed;  and  of  the  illustration  invented  by  my  learned 
friend,  and  so  improbable  in  its  circumstances,  of  the  posi 
tion  of  the  United  States  and  one  of  the  States  of  the  Union, 
that  could  bring  into  play  and  justify  this  resort  to  armed 
opposition.  I  had  said  what  I  had  to  say,  for  the  most  part, 
as  to  the  absurdity  and  improbability  of  the  case  supposed, 
and  the  inadequacy,  the  worthlessness,  the  chimerical 
nature  of  the  remedy  proposed.  Now,  you  will  observe 
that,  in  the  case  supposed,  the  blockade  of  New  York  was  to 
be  without  law,  without  authority,  upon  the  mere  capricious 
pretence  of  the  President — a  pretence  so  absurd  that  it 
could  not  stand  the  inspection  of  the  people  for  a  moment. 
What  is  the  use  of  a  pretence  unless  it  is  a  cover  for  the  act 
which  it  is  intended  to  cloak?  In  such  a  case,  the  only 
proper,  peaceful  course  would  be  to  raise  the  question,  which 
might  be  raised  judicially,  by  attempting,  in  a  peaceful 
manner,  to  pass  the  blockade,  and  throw  the  consequences 
upon  the  subordinate  officers  who  attempted  to  execute  the 
mere  usurpation  of  the  President,  and,  following  the  declara 
tion  of  the  Divine  writings,  that  "wisdom  is  better  than 
weapons  of  war,"  wait  until  the  question  could  be  disposed 
of  under  the  Constitution  of  the  United  States.  For  you 
will  observe  that,  in  the  case  supposed,  there  is  no  threat  to 
the  integrity,  no  threat  to  the  authority,  no  threat  to  the 
existence  of  the  State  Government,  or  its  Constitution;  but 
an  impeding  of  the  trade  or  interests  of  the  people  of  this 
city,  and  of  the  residents  of  all  parts  of  the  country  inter 
ested  in  the  commerce  of  New  York.  That  port  is  not  the 
port  of  New  York  alone.  It  is  the  port  of  the  United  States 
of  America,  and  all  the  communities  in  the  Western  country, 
who  derive  their  supplies  of  foreign  commodities  through 
our  internal  navigation,  when  commerce  has  introduced 


THE  SAVANNAH  PRIVATEERS  165 

them  into  this  port,  are  just  as  much  affected — just  as  much 
injured  and  oppressed — by  this  blockade  of  our  great  port 
and  emporium,  as  are  the  people  of  the  State  of  New  York. 
So  that,  so  far  from  its  being  a  collision  between  the  Gov 
ernment  of  the  State  of  New  York  and  the  Government  of 
the  United  States,  it  is  a  violent  oppression,  by  usurpation 
— exposing  to  the  highest  penalties  of  the  law  the  magistrate 
who  has  attempted  it — exercised  upon  the  people  of  the 
United  States  wherever  residing,  in  the  far  West,  in  the 
surrounding  States,  in  the  whole  country,  who  are  inter 
ested  in  the  maintenance  of  the  commerce  of  this  port.  I 
need  not  say  that  the  action  of  our  institutions  provides  a 
ready  solution  for  this  difficulty.  Two  or  three  weeks  must 
bring  to  the  notice  of  every  one  the  frivolity  of  the  pretence 
of  the  Executive,  that  there  was  a  threat  of  armed  attack 
by  a  foreign  nation.  But  if  two  or  three  weeks  should  bring 
the  evidence  that  this  was  not  an  idle  fear,  and  that,  by 
information  conveyed  to  the  Government,  this  threat  was 
substantial,  and  was  followed  by  its  attempted  execution, — 
why,  then,  how  absurd  the  proposition  that,  under  the 
opinion  of  the  State  of  New  York  that  this  was  but  an  idle 
pretext,  for  purposes  of  oppression,  the  State  should  fly  into 
arms  against  the  power  exercised  to  protect  the  city  from 
foreign  attack!  The  working  of  our  affairs,  which  brings 
around  the  session  of  Congress  at  a  time  fixed  by  law — not 
at  all  determinate  by  the  will  of  the  President — exposes 
him  to  the  grand  inquest  of  the  people,  which  sits  upon  his 
crime,  and,  by  his  presentation  and  trial  before  the  great 
Court  of  Impeachment,  in  the  course  of  one  week — nay,  in 
scarcely  more  than  one  day  after  its  coming  into  session — 
both  stamps  this  act  as  an  usurpation,  and  dispossesses  the 
magistrate  who  has  violated  the  Constitution.  And  yet, 
rather  than  wait  for  this  assertion  of  the  power  of  the  Con 
stitution  peacefully  to  depose  the  usurping  magistrate,  my 
friend  must  resort  to  this  violent  intervention  of  armed 


166         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

collision,  that  would  keep  us — in  theory,  at  least — constantly 
maintaining  our  rights  by  the  mere  method  of  force,  and 
would  make  of  this  Government — at  the  same  time  that 
they  eulogize  the  founders  of  it,  as  the  best  and  wisest  of 
men — but  an  organization  of  armed  hostilities,  and  its 
framers  only  the  architects  of  an  ever-impending  ruin! 

My  learned  friend,  Mr.  Brady,  has  asked  my  attention 
to  the  solution  of  a  case  wherein  he  thinks  the  State  Govern 
ment  might  be  called  upon  to  protect  the  rights  of  its  citi 
zens  against  the  operation  of  an  Act  of  Congress,  by  pro 
posing  this  question:  Suppose  Congress  should  require  that 
all  the  expenses  of  this  great  war,  as  we  call  it,  should  be 
paid  by  the  State  of  New  York, — what  should  we  do  in  that 
case?  Nothing  but  hostilities  are  a  solution  for  that  case,  it 
is  suggested.  Now,  I  would  freely  say  to  my  learned  friend, 
Mr.  Brady,  that  if  the  General  Government,  by  its  law, 
should  impose  the  whole  taxation  of  the  war  upon  the  State 
of  New  York,  I  should  advise  the  State  of  New  York,  or  any 
citizen  in  it,  not  to  pay  the  taxes.  That  is  the  end  of  the 
matter.  And  I  would  like  to  know  if  there  is  any  warlike 
process  by  which  the  General  Government  of  the  United 
States  exacts  its  tribute  of  taxation,  that  could  impose  the 
whole  amount  on  New  York?  As  the  process  of  taxation 
goes  on,  it  is  distributed  through  different  channels,  and 
presents  itself  as  an  actual  and  effective  process,  from  the 
tax-gatherer  to  the  tax-payer:  "Give  me  so  many  dollars." 
And  the  tax-payer  says:  "There  is  no  law  for  it,  and  I  will  not 
do  it."  Then  the  process  of  collection  raises  for  considera 
tion  this  inquiry — whether  the  tax  is  according  to  the  law, 
and  according  to  the  constitutional  law  of  the  United  States 
of  America.  And  this  tribunal,  formed  to  decide  such  ques 
tions — formed  to  settle  principles  in  single  cases,  that  shall 
protect  against  hostilities  these  great  communities — dis 
poses  of  the  question.  If  the  law  is  constitutional,  then  the 
tax  is  to  be  paid — if  unconstitutional,  then  the  tax  is  not 
collectable;  and  the  question  is  settled.  But  my  learned 


THE  SAVANNAH  PRIVATEERS  167 

friends,  in  their  suggestions  of  what  is  a  possible  state  of 
law  that  may  arise  in  this  country,  forget  the  great  distinc 
tion  between  our  situation  under  the  Federal  Government 
and  our  situation  as  Colonies  under  the  authority  of  the 
King  and  Parliament  of  England.  It  is  the  distinction  be 
tween  not  being  represented  and  being  represented. 

Why,  my  learned  friends,  in  order  to  get  the  basis  of  a 
possible  suggestion  of  contrariety  of  duty  and  of  interest  be 
tween  the  Government  of  the  United  States  and  the  people 
in  these  States,  must  overlook,  and  do  overlook,  the  fact 
that  there  is  not  a  functionary  in  the  Federal  Government, 
from  the  President  down  to  the  Houses  of  Congress,  that 
does  not  derive  his  authority  from  the  people,  not  of  one 
State,  not  of  any  number  of  States,  but  of  all  the  States. 
And  thus  standing,  they  are  guardians  arid  custodians,  in 
their  own  interests — in  their  own  knowledge  of  the  interests 
of  their  own  people — in  their  own  knowledge  that  their  place 
in  the  protection,  power,  and  authority  of  the  Government 
of  the  United  States,  proceeds  by  the  favor  and  the  approval 
of  the  local  community  in  which  they  reside.  So  far,  there 
fore,  from  anything  in  the  arrangement  or  the  working  of 
these  political  systems  being  such  as  to  make  the  Representa 
tives  or  Senators  that  compose  Congress  the  masters  or  the 
enemies  of  the  local  population  of  the  States  from  which 
they  respectively  come,  they  come  there  under  the  authority 
of  the  local  population  which  they  represent,  dependent 
upon  it  for  their  place  and  continuance,  and  not  on  the 
Federal  Government. 

Away,  then,  with  the  notion,  so  foreign  to  our  actual,  con 
stituted  Government,  that  this  Government  of  the  United 
States  of  America  is  a  Government  that  is  extended  over 
these  States,  with  an  origin,  a  power,  a  support  independent 
of  them,  and  that  it  contains  in  itself  an  arrangement,  a 
principle,  a  composition  that  can  by  possibility  excite  or 
sustain  these  hostilities!  Why,  every  act  of  Congress  must 


168         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

govern  the  whole  Union.  Every  tax  must,  to  be  constitu 
tional,  be  extended  over  the  whole  Union,  and  according  to 
a  fixed  ratio  of  distribution  between  the  States,  established 
by  the  Constitution  itself.  Now,  therefore,  when  any  par 
ticular  interest,  any  particular  occasion,  any  supposed 
necessity,  any  political  motive,  suggests  a  departure,  on  the 
part  of  the  General  Government,  from  a  necessary  adher 
ence  to  this  principle  of  the  Constitution,  you  will  perceive 
that  not  only  are  the  Representatives  and  Senators  who 
come  from  the  State  against  which  this  exercise  of  power  is 
attempted,  interested  to  oppose,  in  their  places  in  Congress, 
the  violation  of  the  Constitution,  but  the  Representatives 
and  the  Senators  from  every  other  State,  in  support  of  the 
rights  of  the  local  communities  in  which  they  reside,  have 
the  same  interest  and  the  same  duty,  and  may  be  practically 
relied  upon  to  exercise  the  same  right,  and  authority,  and 
opposition,  in  protection  of  their  communities,  against  an 
application  of  the  same  principle,  or  an  obedience  to  the  same 
usurpation,  on  subsequent  occasions,  in  reference  to  other 
questions  that  may  arise.  Therefore,  my  learned  friends, 
when  they  are  talking  to  you,  theoretically  or  practically,  about 
the  opposition  that  may  arise  between  co-ordinate  and  inde 
pendent  sovereignties,  and  would  make  the  glorious  Constitu 
tion  of  this  Federal  Government  an  instance  of  misshapen, 
and  disjointed,  and  impractical  inconsistencies,  forget  that 
the  great  basis  of  both  of  them  rests  in  the  people,  and  in  the 
same  people — equally  interested,  equally  powerful,  to 
restrain  and  to  continue  the  movements  of  each,  within  the 
separate,  constitutional  rights  of  each.  Now,  unquestion 
ably,  in  vast  communities,  with  great  interests,  diverse  and 
various,  opinions  may  vary,  and  honest  sentiments  may 
produce  the  enactment  of  laws  of  Congress,  which  equally 
honest  sentiments,  on  the  part  of  local  communities,  ex 
pressed  through  the  action  of  State  legislation,  may  regard 
as  inconsistent  with  the  Government  and  the  Constitution 


THE  SAVANNAH  PRIVATEERS  169 

of  the  United  States,  and  with  the  rights  of  the  States.  But, 
for  these  purposes,  for  these  occasions,  an  ample  and  com 
plete  theoretical  and  practical  protection  of  the  rights  of  all 
is  found,  in  this  absolute  identity  of  the  interests  of  the 
people  and  of  their  authority  in  both  the  form  and  the  struc 
ture  of  their  complex  Government,  and  in  the  means  pro 
vided  by  the  Constitution  itself  for  testing  every  question 
that  touches  the  right,  the  interest,  the  liberty,  the  property, 
the  freedom  of  any  citizen,  in  all  and  any  of  these  commun 
ities,  before  the  Supreme  Court  of  the  United  States.  Let 
us  not  be  drawn  into  any  of  these  shadowy  propositions,  that 
the  whole  people  may  be  oppressed,  and  not  a  single  indi 
vidual  in  it  be  deprived  of  any  personal  right.  Whenever 
the  liberty  of  the  citizen  is  abridged  in  respect  to  any  per 
sonal  right,  the  counsel  concede  that  the  Courts  are  open  to 
him;  and  that  is  the  theory,  the  wisdom,  and  the  practical 
success  of  the  American  Constitution. 

Now,  gentlemen  of  the  Jury,  but  one  word  more  on  this 
speculative  right  of  secession.  It  is  founded,  if  at  all,  upon 
the  theory,  that  the  States,  having  been,  anterior  to  the 
formation  of  the  Constitution,  independent  sovereignties, 
are,  themselves,  the  creators,  and  that  the  Constitution  is 
the  creature  proceeding  from  their  power.  I  have  said  all 
I  have  to  say  about  either  the  fact,  or  the  result  of  the  fact, 
if  it  be  one,  of  the  existence  of  these  antecedent,  complete 
national  sovereignties  on  the  part  of  any  of  the  original 
States. 

But,  will  my  learned  friends  tell  me  how  this  theory  of 
theirs,  in  respect  to  the  original  thirteen  States,  has  any 
application  to  the  States,  now  quite  outnumbering  the 
original  thirteen,  which  have,  since  the  Constitution  was 
formed,  entered  into  the  Government  of  this  our  territory, 
this  our  people?  Out  of  thirty-four  States,  eleven  have 
derived  their  existence,  their  permission  to  exist,  their  terri 
tory,  their  power  to  make  a  Constitution,  from  the  General 


170         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

Government  itself,  out  of  whose  territory — either  acquired 
originally  by  the  wealth  or  conquest  of  the  Federal  Govern 
ment,  or  derived  directly  or  indirectly  through  cession  or 
partition  or  separation  of  the  original  Colonies — they  have 
sprung  into  existence.  Of  these  eleven  allied  and  confed 
erate  States,  but  four  came  from  the  stock  of  the  original 
thirteen,  and  seven  derived  their  whole  power  and  authority 
from  the  permission  of  the  Constitution  of  the  United  States, 
and  have  sprung  into  existence,  with  the  breath  of  their 
lives  breathed  into  them  through  the  Federal  Government. 
When  the  State  of  Louisiana  talks  of  its  right  to  secede  by 
reason  of  its  sovereignty,  by  reason  of  its  being  one  of  the 
creators  of  the  Federal  Government,  and  of  the  Federal 
Constitution — one  of  the  actors  in  the  principles  of  the  Amer 
ican  Revolution,  and  in  the  conquest  of  our  liberties  from 
the  English  power — we  may  well  lift  our  hands  in  surprise 
at  the  arrogance  of  such  a  suggestion.  Why,  what  was  Louis 
iana,  in  all  her  territory,  at  the  time  of  the  great  transaction 
of  the  Federal  Revolution,  and  for  a  long  time  afterwards, 
but  a  province  of  Spain,  first,  and  afterwards  of  France? 
How  did  her  territory — the  land  upon  which  her  population 
and  her  property  rest — come  to  be  a  part  of  our  territory, 
and  to  give  support  to  a  State  government,  and  to  State 
interests?  Why,  by  its  acquisition,  under  the  wise  policy  of 
Mr.  Jefferson,  early  in  this  century,  upon  the  opportunity 
offered,  by  the  necessity  or  policy  of  the  Emperor  Napoleon, 
for  its  purchase,  by  money,  as  you  would  buy  a  ship,  or  a 
strip  of  land  to  build  a  fort  on. 

Coming  thus  to  the  United  States,  by  its  purchase,  how 
did  Louisiana  come  to  be  set  apart,  carved  out  of  the  im 
mense  territory  comprehended  under  the  name  of  Louisiana, 
but  by  lines  of  division  and  concession  of  power,  proceeding 
from  the  Government  of  the  United  States?  And  why  did 
we  purchase  it?  We  purchased  it  preliminarily,  not  so 
much  to  seize  the  opportunity  for  excluding  from  a  foothold 


THE  SAVANNAH  PRIVATEERS  171 

on  this  Continent  a  great  foreign  Power,  which,  although  its 
territory  here  was  waste  and  uninhabited,  had  the  legal  right 
to  fill  it,  and  might  in  the  course  of  time,  fill  it  with  a  popu 
lation  hostile  in  interests  to  our  own, — not  so  much  for  this 
remote  contingency,  as  to  meet  the  actual  pressing  necessity, 
on  the  part  of  the  population  that  was  beginning  to  fill  up 
the  left  or  eastern  bank  of  the  Mississippi,  from  its  source  to 
near  its  mouth,  that  they  should  have  the  mouth  of  the 
Mississippi  also  within  their  territory,  governed  by  the  same 
laws  and  under  the  same  Government.  And  now,  forsooth, 
the  money  and  the  policy  of  the  United  States  having  ac 
quired  this  territory,  and  conceded  the  political  rights  con 
tained  in  the  Constitution  of  Louisiana,  we  are  to  justify 
the  secession  of  the  territory  of  Louisiana,  carrying  the 
mouth  of  the  Mississippi  with  her,  on  the  theory  that  she 
was  one  of  the  original  sovereignties,  and  one  of  the  creators 
of  the  Constitution  of  the  United  States! 

Well,  gentlemen,  how  are  our  learned  friends  to  escape 
from  this  dilemma?  Are  they  to  say  that  our  constituted 
Government,  complex,  composed  of  State  and  of  Federal 
power,  has  two  sets  of  State  and  Federal  relations  within  it, 
to  wit,  that  which  existed  between  the  General  Government 
and  the  thirteen  sovereign,  original  States,  and  that  which 
exists  between  the  Federal  Government  and  the  other 
twenty-one  States  of  the  Union?  Is  it  to  follow,  from  this 
severance,  that  these  original  Colonies,  declaring  their  inde 
pendence — South  Carolina,  North  Carolina,  Virginia  and 
Georgia — are  to  draw  back  to  themselves  the  portions  of 
their  original  territory  that  have  since,  under  the  authority 
of  the  Constitution,  been  formed  into  separate  communities? 
Our  Constitution  was  made  by  and  between  the  States,  and 
the  people  of  the  States — not  for  themselves  alone — not 
limited  to  existing  territory,  and  arranged  State  and  Pro 
vincial  Governments — but  made  as  a  Government,  and 
made  with  principles  in  respect  to  Government  that  should 


172         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

admit  of  its  extension  by  purchase,  by  conquest,  by  all  the 
means  that  could  bring  accretion  to  a  people  in  territory  and 
in  strength,  and  that  should  be,  in  its  principles,  a  form  of 
Government  applicable  to  and  sufficient  for  the  old  and  the 
new  States,  and  the  old  and  the  new  population.  I  need 
not  refer  to  the  later  instances,  where,  by  purchase,  we 
acquired  Florida,  also  one  of  the  seceded  States,  and  where, 
by  our  armies,  we  gained  the  western  coast  of  the  Pacific. 
Are  these  the  relations  into  which  the  power,  and  blood,  and 
treasure  of  this  Government  bring  it,  in  respect  to  the  new 
communities  and  the  new  States  which,  under  its  protection, 
and  from  its  conceded  power,  have  derived  their  very  exist 
ence? 

Why,  gentlemen,  our  Government  is  said,  by  those  who 
complain  of  it,  or  who  expose  what  they  regard  as  its  difficul 
ties,  to  have  one  element  of  weakness  in  it,  to  wit,  the  possi 
bility  of  discord  between  the  State  and  Federal  authorities. 
But,  if  you  adopt  the  principle,  that  there  is  one  set  of  rules, 
one  set  of  rights,  between  the  Federal  Government  and  the 
original  States  that  formed  the  Union,  and  another  set  of 
rules  between  the  Federal  Government  and  the  new  States, 
I  would  like  to  know  what  becomes  of  the  provision  of  the 
Constitution,  that  the  new  States  may  be  admitted  on  the 
same  footing  with  the  old?  What  becomes  of  the  harmony 
and  accord  among  the  local  Governments  of  this  great 
nation,  which  we  call  State  Governments,  if  there  be  this 
superiority,  in  every  political  sense,  on  the  part  of  the  old 
States,  and  this  absolute  inferiority  and  subjection  on  the 
part  of  the  new? 

And  now,  gentlemen,  having  done  with  this  doctrine  of 
secession,  as  utterly  inconsistent  with  the  theory  of  our 
Government,  and  utterly  unimportant,  as  a  practical  right, 
for  any  supposable  or  even  imaginable  case  that  may  be 
suggested,  I  come  to  consider  the  question  of  the  right  of 
revolution.  I  have  shown  you  upon  what  principles,  and 


THE  SAVANNAH  PRIVATEERS  173 

upon  what  substantial  question,  between  being  subjects  as 
slaves,  or  being  participants  in  the  British  Government,  our 
Colonies  attempted  and  achieved  their  independence.  As 
I  have  said  to  you,  a  very  brief  experience  showed  that  they 
needed,  to  meet  the  exigencies  of  their  situation,  the  estab 
lishment  of  a  Government  that  should  be  in  accordance  with 
the  wishes  and  spirit  of  the  people,  in  regard  of  freedom,  and 
yet  should  be  of  such  strength,  and  such  unity,  as  would 
admit  of  prosperity  being  enjoyed  under  it,  and  of  its  name 
and  power  being  established  among  the  nations  of  the  earth. 
Now,  without  going  into  the  theories  of  Government,  and 
of  the  rights  of  the  people,  and  of  the  rights  of  the  rulers,  to 
any  great  extent,  we  all  know  that  there  has  been  every 
variety  of  experiment  tried,  in  the  course  of  human  affairs, 
between  the  great  extreme  alluded  to  by  my  learned  friend 
(Mr.  Brady)  of  the  slavery  of  Egyptians  to  their  king — the 
extreme  instance  of  an  entire  population  scarcely  lifted  above 
the  brutes  in  their  absolute  subjection  to  the  tyranny  of  a 
ruler,  so  that  the  life,  and  the  soul,  and  the  sweat,  and  the 
blood  of  a  whole  generation  of  men  are  consumed  in  the 
task  of  building  a  mausoleum  as  the  grave  of  a  king — and  the 
later  efforts  of  our  race,  culminating  in  the  happy  success 
of  our  own  form  of  Government,  to  establish,  on  foundations 
where  liberty  and  law  find  equal  support,  the  principle  of 
Government,  that  Government  is  by,  and  for,  and  from  all 
the  people — that  the  rulers,  instead  of  being  their  masters 
and  their  owners,  are  their  agents  and  their  servants — and 
that  the  greatest  good  of  the  greatest  number  is  the  plain, 
practical  and  equal  rule  which,  by  gift  from  our  Creator, 
we  enjoy. 

Now  this,  you  will  observe,  is  a  question  which  readily 
receives  our  acceptance.  But  the  great  problem  in  reference 
to  the  freedom  of  a  people,  in  the  establishment  of  their 
Government,  presents  itself  in  this  wise:  The  people,  in 
order  to  maintain  their  freedom,  must  be  masters  of  their 


174         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

Government,  so  that  the  Government  may  not  be  too  strong, 
in  its  arrangement  of  power,  to  overmaster  the  people;  but 
yet,  the  Government  must  be  strong  enough  to  maintain  and 
protect  the  independence  of  the  nation  against  the  aggres 
sions,  the  usurpations,  and  the  oppressions  of  foreign  na 
tions.  Here  you  have  a  difficulty  raised  at  once.  You 
expose  either  the  freedom  of  the  nation,  by  making  the  Gov 
ernment  too  strong  for  the  preservation  of  individual  inde 
pendence,  or  you  expose  its  existence,  by  making  it  too  weak 
to  maintain  itself  against  the  passions,  interests  and  power 
of  neighboring  nations.  If  you  have  a  large  nation — count 
ing  its  population  by  many  millions,  and  the  circumference 
of  its  territory  by  thousands  of  miles — how  can  you  arrange 
the  strength  of  Government,  so  that  it  shall  not,  in  the 
interests  of  human  passions,  grow  too  strong  for  the  liber 
ties  of  the  people?  And  if,  abandoning  in  despair  that 
effort  and  that  hope,  you  circumscribe  the  limits  of  your 
territory,  and  reduce  your  population  within  a  narrow  range, 
how  can  you  have  a  Government  and  a  nation  strong  enough 
to  maintain  itself  in  the  contests  of  the  great  family  of 
nations,  impelled  and  urged  by  interests  and  passions? 

Here  is  the  first  peril,  which  has  never  been  successfully 
met  and  disposed  of  in  any  of  the  forms  of  Government  that 
have  been  known  in  the  history  of  mankind,  until,  at  least, 
our  solution  of  it  was  attempted,  and  unless  it  has  suc 
ceeded  and  can  maintain  itself.  But,  again,  this  business 
of  self-government  by  a  people  has  but  one  practical  and 
sensible  spirit  and  object.  The  object  of  free  Government  is, 
that  the  people,  as  individuals,  may,  with  security,  pursue 
their  own  happiness.  We  do  not  tolerate  the  theory  that  all 
the  people  constituting  the  nation  are  absorbed  into  the 
national  growth  and  life.  The  reason  why  we  want  a  free 
Government  is,  that  we  may  be  happy  under  it,  and  pursue 
our  own  activities  according  to  our  nature  and  our  faculties. 
But,  you  will  see,  at  once,  that  it  is  of  the  essence  of  being 


THE  SAVANNAH  PRIVATEERS  175 

able  to  pursue  our  own  interests  under  the  Government 
under  which  we  live,  that  we  can  do  so  according  to  our 
own  notions  of  what  they  are,  or  the  notions  of  those  who 
are  intelligently  informed  of,  participate  in,  and  sympathize 
with,  those  interests.  Therefore,  it  seems  necessary  that 
all  of  the  every-day  rights  of  property,  of  social  arrange 
ments,  of  marriage,  of  contracts — everything  that  makes 
up  the  life  of  a  social  community — shall  be  under  the  control, 
not  of  a  remote  or  distant  authority,  but  of  one  that  is 
limited  to,  and  derives  its  ideas  and  principles  from,  a  local 
community. 

Now,  how  can  this  be  in  a  large  nation — in  a  nation  of 
thirty  millions,  distributed  over  a  zone  of  the  earth?  How 
are  we  to  get  along  in  New  York,  and  how  are  others  to  get 
along  in  South  Carolina,  and  others  in  New  England,  in 
the  every-day  arrangements  that  proceed  from  Govern 
ment,  and  affect  the  prosperity,  the  freedom,  the  indepen 
dence,  the  satisfaction  of  the  community  with  the  condition 
in  which  it  lives?  How  can  we  get  along,  if  all  these  minute 
and  every-day  arrangements  are  to  proceed  from  a  Govern 
ment  which  has  to  deal  with  the  diverse  opinions,  the  di 
verse  sentiments,  the  diverse  interests,  of  so  extensive  a 
nation?  But  if,  fleeing  from  this  peril,  you  say  that  you 
may  reduce  your  nation,  you  fall  into  another  difficulty. 
The  advanced  civilization  of  the  present  day  requires,  for 
our  commercial  activity,  for  our  enjoyment  of  the  comforts 
and  luxuries  of  life,  that  the  whole  globe  shall  be  ransacked, 
and  that  the  power  of  the  nation  which  we  recognize  as  our 
superior  shall  be  able  to  protect  our  citizens  in  their  enter 
prises,  in  their  activities,  in  their  objects,  all  over  the  world. 
How  can  a  little  nation,  made  up  of  Massachusetts,  or  made 
up  of  South  Carolina,  have  a  flag  and  a  power  which  can 
protect  its  commerce  in  the  East  Indies  and  in  the  Southern 
Ocean?  Again — we  find  that  nations,  unless  they  are 
separated  by  wide  barriers,  necessarily,  in  the  course  of 


176         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

human  affairs,  come  into  collision;  and,  as  I  have  shown  to 
you,  the  only  arbitrament  for  their  settlement  is  war.  But 
war  is  a  scourge — an  unmitigated  scourge — so  long  as  it 
lasts,  and  in  itself  considered.  But  for  objects  which  make 
it  meritorious  and  useful,  it  is  a  scourge  never  to  be  tolerated. 
It  puts  in  abeyance  all  individual  rights,  interests,  and 
schemes,  until  the  great  controversy  is  settled. 

If,  then,  we  are  a  small  nation,  surrounded  on  all  sides  by 
other  nations,  with  no  natural  barriers,  with  competing 
interests,  with  occasions  of  strife  and  collision  on  all  sides, 
how  can  we  escape  war,  as  a  necessary  result  of  that  miser 
able  situation?  But  war  strengthens  the  power  of  Govern 
ment,  weakens  the  power  of  the  individual,  and  establishes 
maxims  and  creates  forces,  that  go  to  increase  the  weight 
and  the  power  of  Government,  and  to  weaken  the  rights  of 
the  people.  Then,  we  see  that,  to  escape  war,  we  must 
either  establish  a  great  nation,  which  occupies  an  extent  of 
territory,  and  has  a  fund  of  power  sufficient  to  protect  itself 
against  border  strifes,  and  against  the  ambition,  the  envy,  the 
hatred  of  neighbors;  or  else  one  which,  being  small,  is  exposed 
to  war  from  abroad  to  subjugate  it,  or  to  the  greater  peril  to 
its  own  liberties,  of  war  made  by  its  own  Government,  thus 
establishing  principles  and  introducing  interests  which  are 
inconsistent  with  liberty. 

I  have  thus  ventured,  gentlemen,  to  lay  before  you  some 
of  these  general  principles,  because,  in  the  course  of  the 
arguments  of  my  learned  friends,  as  well  as  in  many  of  the 
discussions  before  the  public  mind,  it  seems  to  be  considered 
that  the  ties,  the  affections  and  the  interests,  which  oblige 
us  to  the  maintenance  of  this  Government  of  ours,  find  their 
support  and  proper  strength  and  nourishment  only  in  the  sen 
timents  of  patriotism  and  duty,  because  it  happens  to  be  our 
own  Government;  and  that,  when  the  considerations  of  force 
or  of  feeling  which  bring  a  people  to  submit  to  a  surrender  of 
their  Government,  or  to  a  successful  conquest  of  a  part  of 


THE  SAVANNAH  PRIVATEERS  177 

their  territory,  or  to  a  wresting  of  a  part  of  their  people  from 
the  control  of  the  Government,  shall  be  brought  to  bear  upon 
us,  we  shall  be,  in  our  loss  and  our  surrender,  only  suffering 
what  other  nations  have  been  called  upon  to  lose  and  to  sur 
render  and  that  it  will  be  but  a  change  in  the  actual  condition 
of  the  country  and  its  territory.  But  you  will  perceive  that, 
by  the  superior  fortune  which  attended  our  introduction  into 
the  family  of  nations,  and  by  the  great  wisdom,  forecast, 
and  courage  of  our  ancestors,  we  avoided,  at  the  outset,  all 
the  difficulties  between  a  large  territory  and  a  numerous 
population  on  the  one  hand,  and  a  small  territory  and  a  re 
duced  population  on  the  other  hand,  and  all  those  opposing 
dangers  of  the  Government  being  either  too  weak  to  protect 
the  nation,  or  too  strong,  and  thus  oppressive  of  the  people, 
by  a  distribution  of  powers  and  authorities,  novel  in  the  af 
fairs  of  men,  dependent  on  experiment,  and  to  receive  its 
final  fate  as  the  result  of  that  experiment.  We  went  on  this 
view — that  these  feeble  Colonies  had  not,  each  in  itself,  the 
life  and  strength  of  a  nation;  and,  yet,  these  feeble  Colonies, 
and  their  poor  and  sparse  population,  were  nourished  on  a 
love  of  liberty  and  self-government.  These  sentiments 
had  carried  them  through  a  successful  war  against  one  of  the 
great  powers  of  the  earth.  They  were  not  to  surrender  that 
for  which  they  had  been  fighting  to  any  scheme,  to  any 
theory  of  a  great,  consolidated  nation,  the  Government  of 
which  should  subdue  the  people  and  re-introduce  the  old 
fashion  in  human  affairs — that  the  people  were  made  for 
the  rulers,  and  not  the  rulers  by  and  for  the  people.  They 
undertook  to  meet,  they  did  meet,  this  difficult  dilemma  in 
the  constitution  of  Government,  by  separating  the  great 
fund  of  power,  and  reposing  it  in  two  distinct  organizations. 
They  reserved  to  the  local  communities  the  control  of  their 
domestic  affairs,  and  attributed  the  maintenance  and  pres 
ervation  of  them  to  the  State  Governments.  They  under 
took  to  collect  and  deposit,  under  the  form  of  a  written  Con- 

14 


178         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

stitution,  with  the  general  Government,  all  those  larger  and 
common  interests  which  enter  into  the  conception  and  prac 
tical  establishment  of  a  distinct  nation  among  the  nations  of 
the  earth,  and  determined  that  they  would  have  a  central 
power  which  should  be  adequate,  by  drawing  its  resources 
from  the  patriotism,  from  the  duty,  from  the  wealth,  from 
the  numbers,  of  a  great  nation,  to  represent  them  in  peace  and 
in  war, — a  nation  that  could  protect  the  interests,  encourage 
the  activities,  and  maintain  the  development  of  its  people, 
in  spite  of  the  opposing  interests  or  the  envious  or  hostile 
attacks  of  any  nation.  They  determined  that  this  great 
Government,  thus  furnished  with  this  range  of  authority 
and  this  extent  of  power,  should  not  have  anything  to  do 
with  the  every-day  institutions,  operations  and  social  ar 
rangements  of  the  community  into  which  the  vast  popula 
tion  and  territory  of  the  nation  were  distributed.  They 
determined  that  the  people  of  Massachusetts,  the  people  of 
New  York,  and  the  people  of  South  Carolina,  each  of  them, 
should  have  their  own  laws  about  agriculture,  about  inter 
nal  trade,  about  marriage,  about  apprenticeship,  about 
slavery,  about  religion,  about  schools,  about  all  the  every 
day  pulsations  of  individual  life  and  happiness,  controlled 
by  communities  that  moved  with  the  same  pulsations, 
obeyed  the  same  instincts,  and  were  animated  by  the  same 
purposes.  And,  as  this  latter  class  of  authority  contains  in 
itself  the  principal  means  of  oppression  by  a  Government, 
and  is  the  principal  point  where  oppression  is  to  be  feared  by 
a  people,  they  had  thus  robbed  the  new  system  of  all  the 
dangers  which  attend  the  too  extensive  powers  of  a  Gov 
ernment.  They  divided  the  fund  of  power,  to  prevent  a 
great  concentration  and  a  great  consolidation  of  the  army 
of  magistrates  and  officers  of  the  law  and  of  the  Government 
which  would  have  been  combined  by  a  united  and  consoli 
dated  authority,  having  jurisdiction  of  all  the  purposes  of 
Government,  of  all  the  interests  of  citizens,  and  of  the  entire 


THE  SAVANNAH  PRIVATEERS  179 

population  and  entire  territory  in  these  respects.  They 
thus  made  a  Government,  complex  in  its  arrangements, 
which  met  those  opposing  difficulties,  inherent  in  human 
affairs,  that  make  the  distinction  between  free  Governments 
and  oppressive  Governments.  They  preserved  the  people 
in  their  enjoyment  and  control  of  all  the  local  matters  enter 
ing  into  their  every-day  life,  and  yet  gave  them  an  establish 
ment,  springing  from  the  same  interests  and  controlled  by 
the  same  people,  which  has  sustained  and  protected  us  in  our 
relations  to  the  family  of  nations  on  the  high  seas  and  in  the 
remote  corners  of  the  world. 

Now,  this  is  the  scheme,  and  this  is  the  purpose,  with 
which  this  Government  was  formed;  and  you  will  observe 
that  there  is  contained  in  it  this  separation,  and  this  dis 
tribution.  And  our  learned  friends,  who  have  argued  before 
you  respecting  this  theory,  and  this  arrangement  and  prac 
tice  of  the  power  of  a  Government,  as  inconsistent  with  the 
interests  and  the  freedom  of  the  people,  have  substantially 
said  to  you  that  it  was  a  whimsical  contrivance,  that  it  was 
an  impossible  arrangement  of  inconsistent  principles,  and 
that  we  must  go  back  to  a  simple  Government  composed  of 
one  of  the  States,  or  of  a  similar  arrangement  of  territory 
and  people,  which  would  make  each  of  us  a  weak  and  con 
temptible  power  in  the  family  of  nations — or  we  must  go 
back  to  the  old  consolidation  of  power,  such  as  is  represented 
by  the  frame  of  France  or  England  in  its  Government,  or, 
more  distinctly,  more  absolutely,  and  more  likely  to  be  the 
case,  for  so  vast  a  territory  and  so  extensive  a  population  as 
ours,  to  the  simple  notion  of  Russian  Autocracy. 

That,  then,  being  the  object,  and  that  the  character,  of 
our  institutions,  and  this  right  of  secession  not  being  pro 
vided  for,  or  imagined,  or  tolerated  in  the  scheme,  let  us 
look  at  the  right  of  revolution,  as  justifying  an  attempt  to 
overthrow  the  Government;  and  let  us  look  at  the  occasions 
of  revolution,  which  are  pretended  here,  as  giving  a  support, 


180         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

before  the  world,  in  the  forum  of  conscience,  and  in  the 
judgment  of  mankind,  for  the  exercise  of  that  right. 

And  first,  let  me  ask  you  whether,  in  all  the  citations  from 
the  great  men  of  the  Revolution,  and  in  the  later  stages  of 
our  history,  any  opinion  has  been  cited  which  has  condemned 
this  scheme  as  unsuitable  and  insufficient  for  the  freedom 
and  happiness  of  the  people,  if  it  can  be  successful?  I 
think  not.  The  whole  history  of  the  country  is  full  of  rec 
ords  of  the  approval,  of  the  support,  of  the  admiration,  of 
the  reverent  language  which  our  people  at  large,  and  the 
great  leaders  of  public  opinion — the  great  statesmen  of  the 
country — have  spoken  of  this  system  of  Government.  Let 
me  ask  your  attention  to  but  two  encomiums  upon  it,  as 
represented  by  that  central  idea  of  a  great  nation,  and  yet  a 
divided  and  local  administration  of  popular  interests — to 
wit,  one  in  the  first  stage  of  its  adoption,  before  its  ratifica 
tion  by  the  people  was  complete;  and  the  other,  a  speech 
made  at  the  very  eve  of,  if  not  in  the  very  smoke  of,  this 
hostile  dissolution  of  it. 

Mr.  Pinckney,  of  South  Carolina,  who  had  been  one  of  the 
delegates  from  that  State  in  the  National  Convention,  and 
had  co-operated  with  the  Northern  statesmen,  and  with  the 
great  men  of  Virginia,  in  forming  the  Government  as  it  was, 
in  urging  on  the  Convention  of  South  Carolina  the  adoption 
of  the  Constitution,  and  its  ratification,  said : 

"To  the  Union  we  will  look  up  as  the  temple  of  our  free 
dom, — a  temple  founded  in  the  affections  and  supported  by 
the  virtue  of  the  people.  Here  we  will  pour  out  our  grati 
tude  to  the  Author  of  all  good,  for  suffering  us  to  partici 
pate  in  the  rights  of  a  people  who  govern  themselves.  Is 
there,  at  this  moment,  a  nation  on  the  earth  which  enjoys 
this  right,  where  the  true  principles  of  representation  are 
understood  and  practised,  and  where  all  authority  flows 
from,  and  returns  at  stated  periods  to,  the  people?  I  an 
swer,  there  is  not.  Can  a  Government  be  said  to  be  free 


THE  SAVANNAH  PRIVATEERS  181- 

where  those  do  not  exist?  It  cannot.  On  what  depends  the 
enjoyment  of  those  rare,  inestimable  rights ?  On  the  firmness 
and  on  the  power  of  the  Union  to  protect  and  defend  them.'-' 

Had  we  anything  from  that  great  patriot  and  statesman  of 
this  right  of  secession,  or  independence  of  a  State,  as  an  im 
portant  or  a  useful  element  in  securing  these  rare,  these  un 
heard  of,  these  inestimable  privileges  of  Government,  which 
the  Author  of  all  good  had  suffered  the  people  of  South 
Carolina  to  participate  in?  No — they  depended  "on  the 
firmness  and  on  the  power  of  the  Union  to  protect  and 
defend  them."  Mr.  Pinckney  goes  on  to  say:  "To  the 
philosophic  mind,  how  new  and  awful  an  instance  do  the 
United  States  at  present  exhibit  to  the  people  of  the  world! 
They  exhibit,  sir,  the  first  instance  of  a  people  who,  being 
thus  dissatisfied  with  their  Government,  unattacked  by  a 
foreign  force  and  undisturbed  by  domestic  uneasiness,  coolly 
and  deliberately  resort  to  the  virtue  and  good  sense  of  the 
country  for  a  correction  of  their  public  errors." 

That  is,  for  the  abandonment  of  the  weakness  and  the 
danger  of  the  imperfect  Confederation,  and  the  adoption  of 
the  constitutional  and  formal  establishment  of  Federal 
power.  Mr.  Pinckney  goes  on  to  say: 

"It  must  be  obvious  that,  without  a  superintending  Gov 
ernment,  it  is  impossible  the  liberties  of  this  country  can 
long  be  secure.  Single  and  unconnected,  how  weak  and 
contemptible  are  the  largest  of  our  States!  how  unable  to 
protect  themselves  from  external  or  domestic  insult!  how 
incompetent,  to  national  purposes,  would  even  the  present 
Union  be!  how  liable  to  intestine  war  and  confusion!  how 
little  able  to  secure  the  blessings  of  peace!  Let  us,  there 
fore,  be  careful  in  strengthening  the  Union.  Let  us  remember 
we  are  bounded  by  vigilant  and  attentive  neighbors" — 
(and  now  Europe  is  within  ten  days,  and  they  are  near 
neighbors) — "who  view  with  a  jealous  eye  our  rights  to 
empire." 


182         SPEECHES  OF  WILLIAM  MAXWELL  EVABTS 

Pursuing  my  design  of  limiting  my  citations  of  the  opin 
ions  of  public  men  to  those  who  have  received  honor  from, 
and  conferred  honor  on,  that  portion  of  our  country  and 
those  of  our  countrymen  now  engaged  in  this  strife  with  the 
General  Government,  let  me  ask  your  attention  to  a  speech 
delivered  by  Mr.  Stephens,  now  the  Vice-President  of  the 
so-called  Confederate  States,  on  the  very  eve  of,  and  pro 
testing  against,  this  effort  to  dissolve  the  Union.  I  read 
from  page  220  and  subsequent  pages  of  the  documents  that 
have  been  the  subject  of  reference  heretofore : 

"The  first  question  that  presents  itself" — (says  Mr.  Ste 
phens  to  the  assembled  Legislature  of  Georgia,  of  which  he 
was  not  a  member,  but  which,  as  an  eminent  and  leading  pub 
lic  man,  he  had  been  invited  to  address) — "is,  shall  the  people 
of  the  South  secede  from  the  Union  in  consequence  of  the 
election  of  Mr.  Lincoln  to  the  Presidency  of  the  United 
States?  My  countrymen,  I  tell  you  frankly,  candidly,  and 
earnestly,  that  I  do  not  think  that  they  ought.  In  my  judgment, 
the  election  of  no  man,  constitutionally  elected  to  that  high 
office,  is  sufficient  cause  for  any  State  to  separate  from  the 
Union.  It  ought  to  stand  by  and  aid  still  in  maintaining 
the  Constitution  of  the  country.  To  make  a  point  of  re 
sistance  to  the  Government — to  withdraw  from  it  because 
a  man  has  been  constitutionally  elected — puts  us  in  the 
wrong.  We  are  pledged  to  maintain  the  Constitution. 
Many  of  us  have  sworn  to  support  it. 

***** 

"But  it  is  said  Mr.  Lincoln's  policy  and  principles  are 
against  the  Constitution,  and  that  if  he  carries  them  out  it 
will  be  destructive  of  our  rights.  Let  us  not  anticipate 
a  threatened  evil.  If  he  violates  the  Constitution,  then 
will  come  our  time  to  act.  Do  not  let  us  break  it  because, 
forsooth,  he  may.  If  he  does,  that  is  the  time  for  us  to 
strike.  .  .  .  My  countrymen,  I  am  not  of  those  who 
believe  this  Union  has  been  a  curse  up  to  this  time.  True 


THE  SAVANNAH  PRIVATEERS  183 

men — men  of  integrity — entertain  different  views  from  me 
on  this  subject.  I  do  not  question  their  right  to  do  so;  I 
would  not  impugn  their  motives  in  so  doing.  Nor  will  I 
undertake  to  say  that  this  Government  of  our  fathers  is 
perfect.  There  is  nothing  perfect  in  this  world,  of  a  human 
origin, — nothing  connected  with  human  nature,  from  man 
himself  to  any  of  his  works.  You  may  select  the  wisest  and 
best  men  for  your  Judges,  and  yet  how  many  defects  are 
there  in  the  administration  of  justice?  You  may  select  the 
wisest  and  best  men  for  your  legislators,  and  yet  how  many 
defects  are  apparent  in  your  laws?  And  it  is  so  in  our  Gov 
ernment. 

"But  that  this  Government  of  our  fathers,  with  all  its 
defects,  comes  nearer  the  objects  of  all  good  Governments 
than  any  on  the  face  of  the  earth,  is  my  settled  conviction. 
Contrast  it  now  with  any  on  the  face  of  the  earth."  ("Eng 
land,"  said  Mr.  Toombs.)  "England,  my  friend  says. 
Well,  that  is  the  next  best,  I  grant;  but  I  think  we  have 
improved  upon  England.  Statesmen  tried  their  apprentice 
hand  on  the  Government  of  England,  and  then  ours  was 
made.  Ours  sprang  from  that,  avoiding  many  of  its  de 
fects,  taking  most  of  the  good,  and  leaving  out  many  of  its 
errors,  and,  from  the  whole,  constructing  and  building  up 
this  model  Republic — the  best  which  the  history  of  the 
world  gives  any  account  of. 

"Compare,  my  friends,  this  Government  with  that  of 
Spain,  Mexico,  the  South  American  Republics,  Germany, 
Ireland — are  there  any  sons  of  that  down-trodden  nation 
here  to-night? — Prussia,  or,  if  you  travel  further  East,  to 
Turkey  or  China.  Where  will  you  go,  following  the  sun  in 
his  circuit  round  our  globe,  to  find  a  Government  that  better 
protects  the  liberties  of  its  people,  and  secures  to  them  the 
blessings  we  enjoy?  I  think  that  one  of  the  evils  that 
beset  us  is  a  surfeit  of  liberty,  an  exuberance  of  the  priceless 
blessings  for  which  we  are  ungrateful. 


184         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

"When  I  look  around  and  see  our  prosperity  in  every 
thing — agriculture,  commerce,  art,  science,  and  every  de 
partment  of  education,  physical  and  mental,  as  well  as  moral 
advancement,  and  our  colleges — I  think,  in  the  face  of  such 
an  exhibition,  if  we  can,  without  the  loss  of  power,  or  any 
essential  right  or  interest,  remain  in  the  Union,  it  is  our 
duty  to  ourselves  and  to  posterity  to — let  us  not  too  readily 
yield  to  this  temptation — do  so.  Our  first  parents,  the  great 
progenitors  of  the  human  race,  were  not  without  a  like 
temptation  when  in  the  Garden  of  Eden.  They  were 
led  to  believe  that  their  condition  would  be  bettered — that 
their  eyes  would  be  opened — and  that  they  would  become 
as  gods.  They  in  an  evil  hour  yielded.  Instead  of  becoming 
gods,  they  only  saw  their  own  nakedness. 

"I  look  upon  this  country,  with  our  institutions,  as  the  Eden 
of  the  world,  and  the  paradise  of  the  Universe.  It  may  be 
that  out  of  it  we  may  become  greater  and  more  prosperous, 
but  I  am  candid  and  sincere  in  telling  you  that  I  fear  if  we 
rashly  evince  passion,  and,  without  sufficient  cause,  shall  take 
that  step,  that  instead  of  becoming  greater  or  more  peaceful, 
prosperous  and  happy — instead  of  becoming  gods — we  will 
become  demons,  and,  at  no  distant  day,  commence  cutting 
one  another's  throats." 

Still  speaking  of  our  Government,  he  says : 

"Thus  far,  it  is  a  noble  example,  worthy  of  imitation. 
The  gentleman  (Mr.  Cobb)  the  other  night  said  it  had  proven 
a  failure.  A  failure  in  what?  In  growth?  Look  at  our 
expanse  in  national  power.  Look  at  our  population  and 
increase  in  all  that  makes  a  people  great.  A  failure?  Why, 
we  are  the  admiration  of  the  civilized  world,  and  present 
the  brightest  hopes  of  mankind. 

"Some  of  our  public  men  have  failed  in  their  aspirations; 
that  is  true,  and  from  that  comes  a  great  part  of  our  troubles. 

"No,  there  is  no  failure  of  this  Government  yet.  We 
have  made  great  advancement  under  the  Constitution,  and 


THE  SAVANNAH  PRIVATEERS  185 

I  cannot  but  hope  that  we  shall  advance  higher  still.  Let 
us  be  true  to  our  cause." 

Now,  wherein  is  it  that  this  Government  deserves  these 
encomiums,  which  come  from  the  intelligent  and  profound 
wisdom  of  statesmen,  and  gush  spontaneously  from  the  un 
learned  hearts  of  the  masses  of  the  people?  Why,  it  is 
precisely  in  this  point,  of  its  not  being  a  consolidated  Gov 
ernment,  and  of  its  not  being  a  narrow  and  feeble,  and  weak 
community  and  Government.  Indeed,  I  may  be  permitted 
to  say  that  I  once  heard,  from  the  lips  of  Mr.  Calhoun  him 
self,  this  recognition,  both  of  the  good  fortune  of  this  coun 
try  in  possessing  such  a  Government,  and  of  the  principal 
sources  to  which  the  gratitude  of  a  nation  should  attribute 
that  good  fortune.  I  heard  him  once  say,  that  it  was  to  the 
wisdom,  in  the  great  Convention,  of  the  delegates  from  the 
State  of  Connecticut,  and  of  Judge  Patterson,  a  delegate 
from  the  State  of  New  Jersey,  that  we  owed  the  fact  that 
this  Government  was  what  it  was,  the  best  Government  in 
the  world,  a  confederated  Government,  and  not  what  it 
would  have  been — and,  apparently  would  have  been  but 
for  those  statesmen — the  worst  Government  in  the  world — 
a  consolidated  Government.  These  statesmen,  he  said, 
were  wiser  for  the  South  than  the  South  was  for  herself. 

I  need  not  say  to  you,  gentlemen,  that,  if  all  this  en 
comium  on  the  great  fabric  of  our  Government  is  brought 
to  naught,  and  is  made  nonsense  by  the  proposition  that, 
although  thus  praised  and  thus  admired,  it  contains  within 
itself  the  principle,  the  right,  the  duty,  of  being  torn  to 
pieces,  whenever  a  fragment  of  its  people  shall  be  discon 
tented  and  desire  its  destruction,  then  all  this  encomium 
comes  but  as  sounding  brass  and  a  tinkling  cymbal;  and  the 
glory  of  our  ancestors,  Washington,  and  Madison,  and  Jef 
ferson,  and  Adams — the  glory  of  their  successors,  Webster, 
and  Clay,  and  Wright,  and  even  Calhoun — for  he  was  no 
votary  of  this  nonsense  of  secession — passes  away,  and  their 


186         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

fame  grows  visibly  paler,  and  the  watchful  eye  of  the  English 
monarchy  looks  on  for  the  bitter  fruits  to  be  reaped  by  us  for 
our  own  destruction,  and  as  an  example  to  the  world — the 
bitter  fruits  of  the  principle  of  revolution  and  of  the  right  of 
self-government  which  we  dared  to  assert  against  her  perfect 
control.  Pointing  to  our  exhibition  of  an  actual  concourse 
of  armies,  she  will  say — "It  is  in  the  dragon's  teeth,  in  the 
right  of  rebellion  against  the  monarchy  of  England,  that 
these  armed  hosts  have  found  their  seed  and  sprung  upon 
your  soil." 

Now,  gentlemen,  such  is  our  Government,  such  is  its  ben 
eficence,  such  is  its  adaptation,  and  such  are  its  successes. 
Look  at  its  successes.  Not  three-quarters  of  a  century  have 
passed  away  since  the  adoption  of  its  Constitution,  and  now 
it  rules  over  a  territory  that  extends  from  the  Atlantic  to 
the  Pacific.  It  fills  the  wide  belt  of  the  earth's  surface  that 
is  bounded  by  the  provinces  of  England  on  the  North,  and 
by  the  crumbling,  and  weak,  and  contemptible  Govern 
ments  or  no  Governments  that  shake  the  frame  of  Mexico 
on  the  South.  Have  Nature  and  Providence  left  us  without 
resources  to  hold  together  social  unity,  notwithstanding  the 
vast  expanse  of  the  earth's  surface  which  our  population  has 
traversed  and  possessed?  No.  Keeping  pace  with  our 
wants  in  that  regard,  the  rapid  locomotion  of  steam  on  the 
ocean,  and  on  our  rivers  and  lakes,  and  on  the  iron  roads 
that  bind  the  country  together,  and  the  instantaneous 
electric  communication  of  thought,  which  fills  with  the  same 
facts,  and  with  the  same  news,  and  with  the  same  sentiments, 
at  the  same  moment,  a  great,  enlightened,  and  intelligent 
people,  have  overcome  all  the  resistance  and  all  the  dangers 
which  might  be  attributed  to  natural  obstructions.  Even 
now,  while  this  trial  proceeds,  San  Francisco  and  New  York, 
Boston  and  Portland,  and  the  still  farther  East,  communi 
cate  together  as  by  a  flash  of  lightning — indeed,  it  may  be 
said,  making  an  electric  flash  farther  across  the  earth's  sur- 


THE  SAVANNAH  PRIVATEERS  187 

face,  and  more  intelligible  too,  to  man,  than  ever  in  the  natu 
ral  phenomena  of  the  heavens  the  lightning  displayed  itself. 
No — the  same  Author  of  all  good,  to  whom  Pinckney  avowed 
his  gratitude,  has  been  our  friend  and  protector,  and  has  re 
moved,  step  by  step,  every  impediment  to  our  expansion 
which  the  laws  of  nature  and  of  space  had  been  supposed  to 
interpose.  No,  no — neither  in  the  patriotism  nor  in  the 
wisdom  of  our  fathers  was  there  any  defect;  nor  shall  we 
find,  in  the  disposition  and  purposes  of  Divine  Providence, 
as  we  can  see  them,  any  excuse  or  any  aid  for  the  destruc 
tion  of  this  magnificent  system  of  empire.  No — it  is  in 
ourselves,  in  our  own  time,  and  in  our  own  generation,  in 
our  own  failing  powers  and  failing  duties,  that  the  crash 
and  ruin  of  this  magnificent  fabric,  and  the  blasting  of  the 
future  hopes  of  mankind,  is  to  find  its  cause  and  its  exe 
cution. 

I  have  shown  you,  gentlemen,  how,  when  the  usurpations 
of  the  British  Parliament,  striking  at  the  vital  point  of  the 
independence  of  this  country,  had  raised  for  consideration  and 
determination,  by  a  brave  and  free  people,  the  question  of 
their  destiny,  our  fathers  dealt  with  it.  My  learned  friends, 
in  various  forms,  have  spoken  poetically,  logically  and 
practically  about  all  that  course  of  proceedings  that  has 
been  going  on  in  this  country,  as  finding  a  complete  paral 
lelism,  support,  and  justification  in  the  course  of  the  Ameri 
can  Revolution;  and  a  passage  in  the  Declaration  of  Inde 
pendence  has  been  read  to  you  as  calculated  to  show  that, 
on  a  mere  theoretical  opinion  of  the  right  of  a  people  to 
govern  themselves,  any  portion  of  that  people  are  at  liberty, 
as  well  against  a  good  Government  as  against  a  bad  one,  to 
establish  a  bad  Government  as  well  as  overthrow  a  bad 
Government — have  the  right  to  do  as  they  please,  and,  I 
suppose,  to  force  all  the  rest  of  the  world  and  all  the  rest  of 
the  nation  to  just  such  a  fate  as  their  doing  as  they  please 
may  bring  with  it. 


188         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

Let  us  see  how  this  Declaration  of  Independence,  called 
by  the  great  forensic  orator,  Mr.  Choate,  "a  passionate  and 
eloquent  manifesto,"  and  stigmatized  as  containing  "glit 
tering  generalities" — let  us  see,  I  say,  how  sober,  how  dis 
creet,  how  cautious  it  is  in  the  presentation  of  this  right, 
even  of  revolution.  I  read  what,  both  in  the  newspapers 
and  in  political  discussions,  as  well  as  before  you,  by  the 
learned  counsel,  have  been  presented  as  the  doctrines  of  the 
Declaration  of  Independence,  and  then  I  add  to  it  the  quali 
fying  propositions,  and  the  practical,  stern  requisitions, 
which  that  instrument  appends  to  these  general  views: 

"To  secure  these  rights,  Governments  are  instituted 
among  men,  deriving  their  just  powers  from  the  consent  of 
the  governed;  that  whenever  any  form  of  Government  be 
comes  destructive  of  these  ends,  it  is  the  right  of  the  people 
to  alter  or  abolish  it,  and  to  institute  new  Government, 
laying  its  foundation  on  such  principles,  and  organizing  its 
powers  in  such  form,  as  to  them  shall  seem  most  likely  to 
effect  their  safety  and  happiness.  Prudence,  indeed,  will 
dictate,  that  Governments  long  established  should  not  be 
changed  for  light  and  transient  causes.  And,  accordingly,  all 
experience  hath  shown,  that  mankind  are  more  disposed  to 
suffer,  while  evils  are  sufferable,  than  to  right  themselves  by 
abolishing  the  forms  to  which  they  are  accustomed.  But  when 
a  long  train  of  abuses  and  usurpations,  pursuing  invariably 
the  same  object,  evinces  a  design  to  reduce  them  under  ab 
solute  despotism,  it  is  their  right,  it  is  their  duty,  to  throw 
off  such  Government,  and  to  provide  new  guards  for  their 
future  security.  Such  has  been  the  patient  sufferance  of 
these  Colonies;  and  such  is  now  the  necessity  which  constrains 
them  to  alter  their  former  systems  of  Government.  The 
history  of  the  present  King  of  Great  Britain  is  a  history  of 
repeated  injuries  and  usurpations,  all  having  in  direct  object 
the  establishment  of  an  absolute  tyranny  over  these  States. 
To  prove  this,  let  facts  be  submitted  to  a  candid  world." 


THE  SAVANNAH  PRIVATEERS  189 

And  it  then  proceeds  to  enumerate  the  facts,  in  the  elo 
quent  language  of  the  Declaration,  made  familiar  to  us  all  by 
its  repeated  and  reverent  recitals  on  the  day  which  cele 
brates  its  adoption.  There  is  not  anything  of  moonshine 
about  any  one  of  them.  There  is  not  anything,  perhaps,  of, 
or  anticipation  of,  fear  or  suspicion.  There  is  not  anything 
of  this  or  that  newspaper  malediction,  of  this  or  that  rhe 
torical  disquisition,  of  this  or  that  theory,  or  of  this  or  that 
opprobrium,  but  a  recital  of  direct  governmental  acts  of 
Great  Britain,  all  tending  to  the  purpose  of  establishing 
complete  despotism  over  this  country.  And,  then,  even 
that  not  being  deemed  sufficient,  on  the  part  of  our  great 
ancestors,  to  justify  this  appeal  to  the  enlightened  opinion 
of  the  world,  and  to  the  God  who  directs  the  fate  of  armies, 
they  say: 

"In  every  stage  of  these  oppressions,  we  have  petitioned 
for  redress,  in  the  most  humble  terms;  our  repeated  petitions 
have  been  answered  only  by  repeated  injury.  A  Prince 
whose  character  is  thus  marked  by  every  act  which  may 
define  a  tyrant,  is  unfit  to  be  the  ruler  of  a  free  people. 

"Nor  have  we  been  wanting  in  attentions  to  our  British 
brethren.  We  have  warned  them,  from  time  to  time,  of 
attempts  by  their  Legislature  to  extend  an  unwarrantable 
jurisdiction  over  us.  We  have  reminded  them  of  the  cir 
cumstances  of  our  emigration  and  settlement  here.  We 
have  appealed  to  their  native  justice  and  magnanimity, 
and  we  have  conjured  them,  by  the  ties  of  our  common 
kindred,  to  disavow  those  usurpations,  which  would  inev 
itably  interrupt  our  connection  and  correspondence. 
They,  too,  have  been  deaf  to  the  voice  of  justice  and  of 
consanguinity. ' ' 

Now,  gentlemen,  this  doctrine  of  revolution,  which  our 
learned  friends  rely  upon,  appeals  to  our  own  sense  of  right 
and  duty.  It  rests  upon  facts,  and  upon  the  purpose,  as 
indicated  by  these  facts,  to  deprive  our  ancestors  of  the 


190         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

rights  of  Englishmen,  and  to  subject  them  to  the  power  of  a 
Government  in  which  they  were  not  represented.  Now, 
whence  come  the  occasions  and  the  grievances  urged  before 
you,  and  of  what  kind  are  they?  My  learned  friend,  Mr. 
Brady,  has  given  you  a  distinct  enumeration,  under  nine 
heads,  of  what  the  occasions  are,  and  what  the  grievances 
are.  There  is  not  one  of  them  that,  in  form  or  substance, 
proceeded  from  the  Federal  Government.  There  is  not  a 
statute,  there  is  not  a  proclamation,  there  is  not  an  action, 
judicial,  executive,  or  legislative,  on  the  part  of  the  Federal 
Government,  that  finds  a  place,  either  in  consummation  or 
in  purpose,  in  this  indictment  drawn  by  my  learned  friend 
Mr.  Brady  against  the  Government,  on  behalf  of  his  clients. 
The  letter  of  South  Carolina,  on  completing  the  revocation 
of  her  adoption  of  the  Constitution,  addressed  to  the  States, 
dwells  upon  the  interest  of  slavery  (as  does  my  friend  Mr. 
Brady,  in  all  his  propositions),  and  discloses  but  two  ideas — 
one,  that  when  any  body  or  set  of  people  cease  to  be  a 
majority  in  a  Government,  they  have  a  right  to  leave  it; 
and  the  other,  that  State  action,  on  the  part  of  some  of  the 
Northern  States,  had  been  inconsistent  with,  threatening  to, 
or  opprobrious  of  the  institution  of  slavery  in  the  Southern 
States. 

Let  me  ask  your  attention  to  this  proposition  of  the 
Southern  States,  and  this  catalogue  of  the  learned  counsel. 
As  it  is  only  the  interest  of  slavery,  social  and  political  (for  it 
is  an  interest,  lawfully  existing),  that  leads  to  the  destruc 
tion  of  our  Government  and  of  their  Government,  let  us  see 
what  there  is  in  the  actual  circumstances  of  this  interest,  as 
being  able,  under  the  forms  of  our  Constitution,  to  look  out 
for  itself,  as  well,  at  least,  as  any  other  interest  in  the  coun 
try,  that  can  justify  them  in  finding  an  example  or  a  prece 
dent  in  the  appeal  of  our  fathers  to  arms  to  assert  their 
rights  by  the  strong  hand,  because  in  the  Government  of 
England  they  had  no  representation.  Did  our  fathers  say 


THE  SAVANNAH  PRIVATEERS  191 

that,  because  they  had  not  a  majority  in  the  English  Par 
liament,  they  had  a  right  to  rebel?  No!  They  said  they 
had  not  a  share  or  vote  in  the  Parliament.  That  was  their 
proposition. 

I  now  invite  you  to  consider  this  fundamental  view  of  the 
right  and  power  of  Government,  and  the  right  and  freedom 
of  the  people, — to  wit,  that  every  citizen  is  entitled  to  be 
counted  and  considered  as  good  as  every  other  citizen, — 
as  a  natural  and  abstract  right — as  the  basis  of  our  Govern 
ment,  however  other  arrangements  may  have  adjusted  or 
regulated  that  simple  and  abstract  right.  Then,  let  us  see 
whether  the  arrangement  of  the  Federal  Government,  in 
departing  from  that  natural  right  of  one  man  to  be  as  good 
as  another,  and  to  be  counted  equal  in  the  representation  of 
his  Government,  has  operated  to  the  prejudice  of  the  in 
terest  of  slavery.  We  have  not  heard  anything  in  this  coun 
try  of  any  other  interest  for  many  a  long  year, — much  to  my 
disgust  and  discontent.  There  are  other  interests, — manu 
facturing  interests,  agricultural  interests,  commercial  inter 
ests,  all  sorts  of  interests,  some  of  them  discordant,  if  you 
please.  Let  us  see  whether  this  interest  of  slavery  has  a 
fair  chance  to  be  heard,  and  enjoys  its  fair  share  of  political 
power  under  our  Government,  or  whether,  from  a  denial  to 
it  of  its  fair  share,  it  has  some  pretext  for  appealing  to  force. 
Why,  gentlemen,  take  the  fifteen  Slave  States,  which,  under 
the  census  of  1850,  had  six  millions  of  white  people — that  is, 
of  citizens — and,  under  the  census  of  1860,  about  eight  mil 
lions,  and  compare  them  with  the  white  people  of  the  State 
of  New  York,  which,  under  the  census  of  1850,  had  three 
millions,  and,  under  the  census  of  1860,  something  like  four 
millions. 

Now,  here  we  are, — they  as  good  as  we,  and  we  as  good  as 
they, — we  having  our  interests,  and  opinions,  and  feelings — 
they  their  opinions,  interests,  and  feelings, — and  let  us  see 
how  the  arrangement  of  representation,  in  every  part  of 


192         SPEECHES  OF  WILLIAM  MAXWElL  EVARTS 

our  Government,  is  distributed  between  these  interests. 
Why,  with  a  population  just  double  that  of  the  State  of 
New  York,  the  interest  of  slavery  has  thirty  Senators  to 
vote  and  to  speak  for  it,  and  the  people  of  New  York  have 
two  Senators  to  vote  and  to  speak  for  them.  In  the  House 
of  Representatives  these  same  Slave  States  have  ninety 
Representatives  to  speak  and  to  vote  for  them;  and  the 
people  of  the  State  of  New  York  have  thirty-three  to  vote 
and  to  speak  for  them.  And,  in  the  Electoral  College,  which 
raises  to  the  chief  magistracy  the  citizen  who  receives  the 
constitutional  vote,  these  same  States  have  one  hundred 
and  twenty  electoral  votes,  and  the  State  of  New  York  has 
thirty-five.  Why,  the  three  coterminous  States — New  York, 
Pennsylvania,  and  Ohio — have,  under  either  census,  as 
great  or  a  greater  population. than  the  fifteen  Slave  States, 
and  they  have  but  six  Senators,  against  the  Slave  States' 
thirty. 

Do  I  mention  this  in  complaint?  Not  in  the  least.  I 
only  mention  it  to  show  you  that  the  vote  and  the  voice  of 
this  interest  has  not  been  defrauded  in  the  artificial  distribu 
tion  of  Federal  power.  And,  if  I  may  be  allowed  to  refer 
to  the  other  august  department  of  our  Federal  Govern 
ment,  the  Supreme  Court  of  the  United  States,  in  which  the 
Presiding  Justice  has  his  seat  as  one  of  the  members  of 
that  Court,  you  will  see  how  the  vast  population,  the  vast 
interests  of  business,  commerce,  and  what  not,  that  reside 
in  the  Free  States,  as  compared  with  the  lesser  population, 
the  lesser  business,  and  the  lesser  demand  for  the  authority 
or  intervention  of  the  judiciary  in  the  Slave  States,  have 
been  represented  for  years,  by  the  distribution  of  the  nine 
Judges  of  that  Court,  so  that  the  eighteen  millions  of  white 
people  who  compose  the  population  of  the  Free  States  have 
been  represented  (not  in  any  political  sense)  by  four  of 
these  Justices;  and  the  rest  of  the  country,  the  fifteen  Slave 
States,  with  their  population  of  six  or  eight  millions,  have 


THE  SAVANNAH  PRIVATEEHS  193 

been  represented  by  five.  Now,  of  this  I  do  not  complain. 
It  is  law — it  is  government;  and  no  injustice  has  been  done  to 
the  Constitution,  nor  has  it  been  violated  in  this  arrange 
ment.  But,  has  there  been  any  fraud  upon  the  interest 
of  slavery,  in  the  favor  the  Federal  Government  has  shown 
in  the  marking  out  of  the  Judicial  Districts,  and  in  the 
apportionment  of  the  Judges  to  the  different  regions  of  the 
country,  and  to  the  population  of  those  regions?  If  you  look 
at  it  as  regards  the  business  in  the  different  Circuits,  the 
learned  Justice  who  now  presides  here,  and  who  holds  his 
place  for  the  Second  Circuit  including  our  State,  disposes 
annually,  here  and  in  other  Courts,  of  more  business  than, 
I  may  perhaps  say,  all  the  Circuits  that  are  made  up  from 
the  Slave  States.  And,  if  you  look  at  it  as  regards  the  popu 
lation,  there  was  one  Circuit — that  which  was  represented  by 
the  learned  Mr.  Justice  McLean,  lately  deceased — which 
contained  within  itself  five  millions  of  white,  free  population; 
while  one  other  Circuit,  represented  by  another  learned 
Justice,  lately  deceased — a  Circuit  composed  of  Mississippi 
and  Arkansas — contained  only  450,000,  at  the  time  of  the 
completion  of  the  census  of  1850.  Who  complains  of  this? 
Do  we?  Never.  But,  when  it  is  said  to  you  that  there  is 
a  parallelism  between  the  right  of  revolt,  because  of  lack 
of  representation,  in  the  case  of  our  people  and  the  Par 
liament  of  England,  and  the  case  of  these  people  and  the 
United  States,  or  any  of  the  forms  of  its  administration  of 
power,  remember  these  things.  I  produce  this  in  the  simple 
duty  of  forensic  reply  to  the  causes  put  forward  as  a  justi 
fication  of  this  revolt — that  is  to  say  that,  the  Government 
oppressing  them,  or  the  Government  closed  against  them, 
and  they  excluded  from  it,  they  had  a  right  to  resort  to  the 
revolution  of  force. 

You,  therefore,  must  adopt  the  proposition  of  South 
Carolina,  that,  when  any  interest  ceases  to  be  the  majority 
in  a  Government,  it  has  a  right  to  secede.  How  long  would 

15 


194         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

such  a  Government  last?  Why,  there  was  never  any  in 
terest  in  this  country  which  imagined  that  it  had  a  ma 
jority.  Did  the  tariff  interest  have  a  majority?  Did  the 
grain  interest  have  a  majority?  Did  the  commercial  in 
terest  have  a  majority?  Did  the  States  of  the  West  have  a 
majority?  Does  California  gold  represent  itself  by  a  ma 
jority?  Why,  the  very  safety  of  such  a  Government  as  this, 
is,  that  no  interest  shall  or  can  be  a  majority;  but  that  the 
concurring,  consenting  wisdom  drawn  out  of  these  con 
flicting  interests  shall  work  out  a  system  of  law  which  will 
conduce  to  the  general  interest. 

Now,  that  I  have  not  done  my  learned  friend,  Mr.  Brady, 
any  injustice  in  presenting  the  catalogue  of  grievances  (not 
in  his  own  view,  but  in  the  view  of  those  who  have  led  in  this 
rebellion),  let  us  see  what  they  are: 

"The  claim  to  abolish  slavery."  Is  there  any  statute  of 
the  United  States  anywhere  that  has  abolished  it?  Has 
any  Act  been  introduced  into  Congress  to  abolish  it?  Has 
the  measure  had  a  vote? 

"Stoppage  of  the  inter-state  slave-trade."  I  may  say 
the  same  thing  of  that. 

"No  more  slavery  in  the  Territories."  Where  is  the  Act 
of  Congress,  where  is  the  movement  of  the  Federal  Govern 
ment,  where  the  decision  of  the  Supreme  Court,  that  holds 
that  slavery  cannot  go  into  a  territory?  Why,  so  far  as 
acts  go,  everything  has  gone  in  the  way  of  recognizing  the 
confirmation  of  the  right — the  repeal  of  the  Missouri  Com 
promise  by  Congress,  and  the  decision  of  the  Federal  Court, 
if  it  go  to  that  extent,  as  is  claimed,  in  the  case  of  Dred  Scott. 

"Nullification  of  the  fugitive-slave  law."  Who  passed 
the  fugitive-slave  law?  Congress.  Who  have  enforced  it? 
The  Federal  power,  by  arms,  in  the  city  of  Boston.  Who 
have  enjoined  its  observation,  to  Grand  Juries  and  to  Juries? 
The  Justices  of  the  Supreme  Court  of  the  United  States,  in 
their  Circuits.  Who  have  held  it  to  be  constitutional? 


THE  SAVANNAH  PRIVATEERS  195 

The  Supreme  Court  of  the  United  States,  and  the  subordi 
nate  Courts  of  the  United  States,  and  every  State  Court  that 
has  passed  upon  the  subject,  except  it  be  the  State  Court  of 
the  State  of  Wisconsin,  if  I  am  correctly  advised. 

"Underground  railroads,  supported  by  the  Government, 
and  paid  by  them."  Are  they?  Not  in  the  least. 

"The  case  of  the  Creole" — where,  they  say,  no  protection 
was  given  to  slaves  on  the  high  seas.  Is  there  any  judicial 
interpretation  to  that  effect?  Nothing  but  the  refusal  of 
Congress  to  pass  a  bill,  under  some  circumstances  of  this  or 
that  nature,  presented  for  its  consideration;  and,  because  it 
has  refused,  it  is  alleged  there  is  the  assertion  of  some  principle 
that  should  charge  upon  this  Government  the  inflamed  and 
particular  views  generally  maintained  on  slavery  by  Garrison, 
Phillips,  and  Theodore  Parker.  The  other  enormities  they 
clothe  in  general  phrase,  and  do  not  particularly  specify,  ex 
cept  one  particular  subject — what  is  known  as  the  "John 
Brown  raid" — in  regard  to  which,  as  it  has  been  introduced, 
I  shall  have  occasion  to  say  something  in  another  connection, 
and,  therefore,  I  will  not  comment  upon  it  now. 

I  find.,  however,  I  have  omitted  the  last — Mr.  Lincoln's 
doctrine,  that  it  is  impossible,  theoretically,  for  slave  and 
free  States  to  co-exist.  For  many  years,  that  was  considered 
to  be  Mr.  Seward's  doctrine,  but,  when  Mr.  Lincoln  became 
a  candidate  for  the  Presidency,  it  was  charged  on  him, 
being  supported  by  some  brief  extracts  from  former  speeches 
made  by  him  in  canvassing  his  State.  I  cannot  discuss  all 
these  matters.  They  are  beneath  the  gravity  of  State 
necessity,  and  of  the  question  of  the  right  of  revolution. 
They  are  the  opinions,  the  sentiments,  the  rhetoric,  the 
folly,  the  local  rage  and  madness,  if  you  please,  in  some  in 
stances,  of  particular  inflammations,  either  of  sentiment 
or  of  action,  rising  in  the  bosom  of  so  vast,  so  impetuous  a 
community  as  ours.  But,  suppose  the  tariff  States,  sup 
pose  the  grain  States,  were  to  attempt  to  topple  down 


196         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

the  Government,  and  maintain  a  separate  and  sec 
tional  independence  upon  their  interests,  of  only  the 
degree  and  gravity,  and  resting  in  the  proof  of  facts  like 
these!  Now,  for  the  purpose  of  the  argument,  let  us  sup 
pose  all  these  things  to  be  wrong.  My  learned  friends, 
who  have  made  so  great  and  so  passionate  an  appeal  that 
individual  lives  should  not  be  sacrificed  for  opinion,  certainly 
might  listen  to  a  proposition  that  the  life  of  a  great  nation 
should  not  be  destroyed  on  these  questions  of  the  opinions 
of  individual  citizens.  No — you  never  can  put  either  the 
fate  of  a  nation  that  it  must  submit,  or  the  right  of  malcon 
tents  to  assert  their  power  for  its  overthrow,  upon  any  such 
proposition,  of  the  ill-working,  or  of  the  irritations  that 
arise,  and  do  not  come  up  to  the  effect  of  oppression,  in  the 
actual,  the  formal,  and  the  persistent  movement  of  Gov 
ernment.  Never  for  an  instant.  For  that  would  be,  what 
Mr.  Stephens  has  so  ably  presented  the  folly  of  doing,  to 
require  that  a  great  Government,  counting  in  its  population 
thirty  millions  of  men,  should  not  only  be  perfect  in  its  de 
sign  and  general  form  and  working,  but  that  it  should  secure 
perfect  action,  perfect  opinions,  perfect  spirit  and  sentiments 
from  every  one  of  its  people — and  that,  made  out  of  mere 
imperfect  individuals  who  have  nothing  but  poor  human 
nature  for  their  possession,  it  should  suddenly  become  so 
transformed,  as  to  be  without  a  flaw,  not  only  in  its  ad 
ministration,  but  in  the  conduct  of  everybody  under  it. 

Now,  my  learned  friends,  pressed  by  this  difficulty  as  to 
the  sufficiency  of  the  causes,  are  driven  finally  to  this — 
that  there  is  a  right  of  revolution  when  anybody  thinks 
there  is  a  right  of  revolution,  and  that  that  is  the  doctrine 
upon  which  our  Government  rests,  and  upon  which  the 
grave,  serious  action  of  our  forefathers  proceeded.  And  it 
comes  down  to  the  proposition  of  my  learned  friend,  Mr. 
Brady,  that  it  all  comes  to  the  same  thing,  the  power  and 
the  right.  All  the  argument,  most  unquestionably,  comes 


THE  SAVANNAH  PRIVATEERS  197 

to  that.  But  do  morals,  does  reason,  does  common  sense 
recognize  that,  because  power  and  right  may  result  in  the 
same  consequences,  therefore  there  is  no  difference  in  their 
quality,  or  in  their  support,  or  in  their  theory?  If  I  am  slain 
by  the  sword  of  justice  for  my  crime,  or  by  the  dagger  of  an 
assassin  for  my  virtue,  I  am  dead,  under  the  stroke  of  either. 
But  is  one  as  right  as  the  other?  An  oppressive  Govern 
ment  may  be  overthrown  by  the  uprising  of  the  oppressed, 
and  Lord  Camden's  maxim  may  be  adhered  to,  that  "when 
oppression  begins,  resistance  becomes  a  right;"  but  a  Gov 
ernment,  beneficent  and  free,  may  be  attacked,  may  be 
overthrown  by  tyranny,  by  enemies,  by  mere  power.  The 
Colonies  may  be  severed  from  Great  Britain,  on  the  prin 
ciple  of  the  right  of  the  people  asserting  itself  against  the 
tyranny  of  the  parent  Government;  and  Poland  may  be  dis 
membered  by  the  interested  tyranny  of  Russia  and  Austria; 
and  each  is  a  revolution  and  destruction  of  the  Government, 
and  its  displacement  by  another — a  dismemberment  of  the 
community,  and  the  establishment  of  a  new  one  under 
another  Government.  But,  do  my  learned  friends  say  that 
they  equally  come  to  the  test  of  power  as  establishing  the 
right?  Will  my  learned  friend  plant  himself,  in  justifica 
tion  of  this  dismemberment  of  a  great,  free,  and  prosperous 
people,  upon  the  example  of  the  dismemberment  of  Poland, 
by  the  introduction  of  such  influences  within,  and  by  the 
co-operation  of  such  influences  without,  as  secured  that 
result?  Certainly  not.  And  yet,  if  he  puts  it  upon  the 
right  and  the  power,  as  coming  to  the  same  thing,  it  cer 
tainly  cannot  make  any  difference  whether  the  power  pro 
ceeds  from  within  or  from  without.  There  is  no  such  right. 
Both  the  public  action  of  communities  and  the  private  ac 
tion  of  individuals  must  be  tried,  if  there  is  any  trial,  any 
scrutiny,  any  judgment,  any  determination,  upon  some 
principles  that  are  deeper  than  the  question  of  counting 
bayonets.  When  we  are  referred  to  the  case  of  Victor 


198         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

Emmanuel  overthrowing  the  throne  of  the  King  of  Naples, 
and  thus  securing  the  unity  of  the  Italian  people  under  a 
benign  Government,  are  we  to  be  told  that  the  same  prin 
ciple  and  the  same  proposition  would  have  secured  accep 
tance  before  the  forum  of  civilization,  and  in  the  eye  of 
morality,  to  a  successful  effort  of  the  tyrant  of  Naples  to 
overthrow  the  throne  of  Victor  Emmanuel,  and  include  the 
whole  of  Italy  under  his,  King  Bomba's,  tyranny?  No  one. 
The  quality  of  the  act,  the  reason,  the  support,  and  the 
method  of  it,  are  traits  that  impress  their  character  on  those 
great  public  and  national  transactions  as  well  as  upon  any 
other. 

There  is  but  one  proposition,  in  reason  and  morality, 
beyond  those  I  have  stated,  which  is  pressed  for  the  extrica 
tion  and  absolution  of  these  prisoners  from  the  guilt  that 
the  law,  as  we  say,  impresses  upon  their  action  and  visits 
with  its  punishment.  It  is  said  that,  however  little,  as 
matter  of  law,  these  various  rights  and  protections  may  come 
to,  good  faith,  or  sincere,  conscientious  conviction  on  the 
part  of  these  men  as  to  what  they  have  done,  should  protect 
them  against  the  public  justice. 

Now,  we  have  heard  a  great  deal  of  the  assertion  and  of 
the  execration  of  the  doctrine  of  the  "higher  law,"  in  the 
discussions  of  legislation,  and  in  the  discussions  before  the 
popular  mind;  but  I  never  yet  have  heard  good  faith  or  sin 
cere  opinion  pressed,  in  a  Court  of  Justice,  as  a  bar  to  the 
penalty  which  the  law  has  soberly  affixed,  in  the  discreet  and 
deliberate  action  of  the  Legislature.  And  here  my  learned 
friend  furnishes  me,  by  his  reference  to  the  grave  instance  of 
injury  to  the  property,  and  the  security,  and  the  authority  of 
the  State  of  Virginia,  which  he  has  spoken  of  as  "John 
Brown's  raid,"  with  a  ready  instance,  in  which  these  great 
principles  of  public  justice,  the  authority  of  Government, 
and  the  sanctions  of  human  law  were  met,  in  the  circum 
stances  of  the  transaction,  by  a  complete,  and  thorough,  and 


THE  SAVANNAH  PRIVATEERS  199 

remarkable  reliance,  for  the  motive,  the  support,  the  stimu 
lus,  the  solace,  against  all  the  penalties  which  the  law  had 
decreed  for  such  a  crime,  on  this  interior  authority  of  con 
science,  and  this  supremacy  of  personal  duty,  according  to 
the  convictions  of  him  who  acts.  The  great  State  of  Virginia 
administered  its  justice,  and  it  found,  as  its  principal  victim, 
this  most  remarkable  man,  in  regard  to  whom  it  was  utterly 
impossible  to  impute  anything  like  present  or  future, 
near  or  remote,  personal  interest  or  object  of  any  kind — a 
man  in  regard  to  whom  Governor  Wise,  of  Virginia,  said,  in 
the  very  presence  of  the  transaction  of  his  trial,  that  he  was 
the  bravest,  the  sincerest,  the  truthfulest  man  that  he  ever 
knew.  And  now,  let  us  look  at  the  question  in  the  light  in 
which  our  learned  friend  presents  it — that  John  Brown,  as 
matter  of  theoretical  opinion  of  what  he  had  a  right  to  do, 
under  the  Constitution  and  laws  of  his  country,  was  justified, 
upon  the  pure  basis  of  conscientious  duty  to  God — and  let 
us  see  whether,  before  the  tribunals  of  Virginia,  as  matter  of 
fact,  or  matter  of  law,  or  right,  or  duty,  any  recognition  was 
given  to  it.  No.  John  Brown  was  not  hung  for  his  theo 
retical  heresies,  nor  was  he  hung  for  the  hallucinations  of 
his  judgment  and  the  aberration  of  his  wrong  moral  sense,  if 
you  so  call  it,  instead  of  the  interior  light  of  conscience,  as 
he  regarded  it.  He  was  hung  for  attacking  the  sovereignty, 
the  safety,  the  citizens,  the  property,  and  the  people  of 
Virginia.  And,  when  my  learned  friend  talks  about  this 
question  of  hanging  for  political,  moral,  or  social  heresy,  and 
that  you  cannot  thus  coerce  the  moral  power  of  the  mind, 
he  vainly  seeks  to  beguile  your  judgment.  When  Ravaillae 
takes  the  life  of  good  King  Henry  of  France,  is  it  a  justifica 
tion  that,  in  the  interests  of  his  faith,  holy  to  him — of  the 
religion  he  professed — he  felt  impelled  thus  to  take  the  life 
of  the  monarch?  When  the  assassin  takes,  at  the  door  of 
the  House  of  Commons,  the  life  of  the  Prime  Minister, 
Mr.  Percival,  because  he  thinks  that  the  course  of  measures 


200         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

his  administration  proposes  to  carry  out  is  dangerous  to  the 
country,  and  falls  a  victim  to  violated  laws,  I  ask,  in  the 
name  of  common  sense  and  common  fairness — are  these 
executions  to  be  called  hanging  for  political  or  religious  here 
sies?  No.  And  shall  it  ever  be  said  that  sincere  convictions 
on  these  theories  of  secession  and  of  revolution  are  entitled 
to  more  respect  than  sincere  convictions  and  opinions  on  the 
subject  of  human  rights?  Shall  it  be  said  that  faith  in 
Jefferson  Davis  is  a  greater  protection  from  the  penalty  of 
the  law  than  faith  in  God  was  to  John  Brown  or  Francis 
Ravaillae?  But,  gentlemen,  it  was  said  that  certain  isolated 
acts  of  some  military  or  civil  authority  of  the  United  States, 
or  some  promulgation  of  orders,  or  affirmation  of  measures 
by  the  Government,  had  recognized  the  belligerent  right, 
or  the  right  to  be  considered  as  a  power  fighting  for  inde 
pendence,  of  this  portion  of  our  countrymen.  The  flags  of 
truce,  and  the  capitulation  at  Hatteras  Inlet,  and  the  an 
nouncement  that  we  would  not  invade  Virginia,  but  would 
protect  the  Capital,  are  claimed  as  having  recognized  this 
point.  Now,  gentlemen,  this  attempts  either  too  much  or 
too  little.  Is  it  gravely  to  be  said  that,  when  the  Govern 
ment  is  pressing  its  whole  power  for  the  restoration  of  peace 
and  for  the  suppression  of  this  rebellion,  it  is  recognizing  a 
right  to  rebel,  or  has  liberated  from  the  penalties  of  the 
criminal  law  such  actors  in  it  as  it  may  choose  to  bring  to 
punishment?  Is  it  to  be  claimed  here  that,  by  reason  of 
these  proceedings,  the  Government  has  barred  itself  from 
taking  such  other  proceedings,  under  the  same  circumstances, 
as  it  may  think  fit?  Why,  certainly  not.  The  Govern 
ment  may,  at  any  time,  refuse  to  continue  this  amenity  of 
flags  of  truce.  It  can,  the  next  time,  refuse  to  receive  a 
capitulation  as  "prisoners  of  war,"  and  may,  in  any  future 
action — as,  indeed,  in  its  active  measures  for  the  suppression 
of  the  rebellion  it  is  doing — affirm  its  control  over  every  part 
of  the  revolted  regions  of  this  country.  There  is  nothing 


THE  SAVANNAH  PRIVATEERS  201 

in  this  fact  that  determines  anything  for  the  occasion,  but 
the  occasion  itself.  The  idea  that  the  commander  of  an 
expedition  to  Hatteras  Inlet  has  it  in  his  power  to  commit 
the  Government,  so  as  to  empty  the  prisons,  to  overthrow 
the  Courts,  and  to  discharge  Jurors  from  their  duty,  and 
criminals  from  the  penalties  of  their  crimes,  is  absurd. 

I  shall  now  advert  to  the  opinion  of  Judge  Cadwalader, 
on  the  trial  in  Philadelphia,  and  to  the  propositions  of  the 
counsel  there,  on  behalf  of  the  prisoners,  as  containing  and 
including  the  general  views  and  points  urged,  in  one  form 
or  another,  and  with  greater  prolixity,  at  least,  if  not  ear 
nestness  and  force,  by  the  learned  counsel  who  defend  the 
prisoners  here.  It  will  be  found  that  those  points  cover  all 
these  considerations: 

First.  If  the  Confederate  States  of  America  is  a  Govern 
ment,  either  de  facto  or  de  jure,  it  had  a  right  to  issue  letters 
of  marque  and  reprisal;  and  if  issued  before  the  commission 
of  the  alleged  offence,  that  the  defendant,  acting  under  the 
authority  of  such  letters,  would  be  a  privateer,  and  not  a 
pirate,  and,  as  such,  is  entitled  to  be  acquitted. 

Second.  That  if,  at  the  time  of  the  alleged  offence,  the 
Southern  Confederacy,  by  actual  occupation,  as  well  as  acts 
of  Government,  had  so  far  acquired  the  mastery  or  control 
of  the  particular  territory  within  its  limits  as  to  enable  it  to 
exercise  authority  over,  and  to  demand  and  exact  allegiance 
from,  its  residents,  that  then  a  resident  of  such  Con 
federacy  owes  allegiance  to  the  Government  under  which 
he  lives,  or,  at  least,  that  by  rendering  allegiance  to  such 
Government,  whether  on  sea  or  land,  he  did  not  thereby 
become  a  traitor  to  the  Government  of  the  United  States. 

Third.  That  if,  at  the  time  of  the  alleged  offence  and  the 
issuing  of  the  letters  of  marque  and  reprisal  upon  which  the 
defendant  acted,  the  Courts  of  the  United  States  were  so 
suspended  or  closed  in  the  Southern  Confederacy,  as  to  be 
no  longer  able  to  administer  justice  and  enforce  the  law  in 


202         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

such  Confederacy,  that  the  defendant  thereby  became  so 
far  absolved  from  his  allegiance  to  the  United  States  as  to 
enable  him  to  take  up  arms  for,  and  to  enter  the  service  of, 
the  Southern  Confederacy,  either  on  land  or  sea,  without 
becoming  a  traitor  to  the  Government  of  the  United  States. 

Fourth.  That  if,  at  the  time  of  the  alleged  offence  and  his 
entering  into  the  service  of  the  Southern  Confederacy,  the 
defendant  was  so  situated  as  to  be  unable  to  obtain  either 
civil  or  military  protection  from  the  United  States,  whilst  at 
the  same  time  he  was  compelled  to  render  either  military  or 
naval  service  to  the  Southern  Confederacy,  or  to  leave  the 
country,  and,  in  this  event,  to  have  his  property  sequestrated 
or  confiscated  by  the  laws  of  the  said  Confederacy,  that  such 
a  state  of  things,  if  they  existed,  would  amount  in  law  to 
such  duress  as  entitles  the  defendant  here  to  an  acquittal. 

Fifth.  That  this  Court  has  no  jurisdiction  of  the  case, 
because  the  prisoner,  after  his  apprehension  on  the  high  seas, 
was  first  brought  into  another  District,  and  ought  to  have 
been  there  tried. 

And  now,  gentlemen,  even  a  more  remote,  unconnected 
topic,  has  been  introduced  into  this  examination,  and  dis 
cussed  and  pursued  with  a  great  deal  of  force  and  feeling,  by 
my  learned  friend,  Mr.  Brady;  and  that  is,  what  this  war  is 
for,  and  what  is  expected  to  be  accomplished  by  it.  Well, 
gentlemen,  is  your  verdict  to  depend  upon  any  question  of 
that  kind?  Is  it  to  depend  either  upon  the  purpose  of  the 
Government  in  waging  the  war,  or  upon  its  success  in  that 
purpose?  If  so,  the  trial  had  been  better  postponed  to  the 
end  of  the  war,  and  then  you  will  find  your  verdict  in  the 
result.  What  is  the  meaning  of  this?  Let  those  who  began 
the  war  say  what  the  war  is  for.  Is  it  to  overthrow  this 
Government  and  to  dismember  its  territory?  Is  it  to  ac 
quire  dominion  over  as  large  a  portion  of  what  constitutes 
the  possessions  of  the  American  people,  and  over  as  large  a 
share  of  its  population,  as  the  policy  or  the  military  power 


THE  SAVANNAH  PRIVATEERS  203 

of  the  interest  that  establishes  for  itself  an  independent 
Government,  for  its  own  protection,  can  accomplish?  Who 
are  seeking  to  subjugate,  and  who  is  seeking  to  protect? 
No  subjugation  is  attempted  or  desired,  in  respect  of  the 
people  of  these  revolting  States,  except  that  subjugation 
which  they  themselves  made  for  themselves  when  they 
adopted  the  Constitution  of  the  United  States,  and  thanked 
God,  with  Charles  Cotesworth  Pinckney,  that  his  blessing 
permitted  them  to  do  so, — and,  up  to  this  time,  with  Alex 
ander  Stephens,  have  found  it  to  be  a  Government  that  can 
only  be  likened,  on  this  terrestrial  sphere,  to  the  Eden 
and  Paradise  of  the  nations  of  men.  What  is  the  in 
terest  that  is  seeking  to  wrest  from  the  authority  of  that 
benign  Government  portions  of  its  territory  and  authority, 
but  the  social  and  political  interest  of  slavery,  about  which 
I  make  no  other  reproach  or  question  than  this — that  it  has 
purposes,  and  objects,  and  principles  which  do  not  consult 
the  general  or  equal  interests  of  the  population  of  these 
revolting  States  themselves,  nor  contemplate  a  form  of 
Government  that  any  Charles  Cotesworth  Pinckney,  now, 
or  any  Alexander  Stephens,  hereafter,  can  thank  God  for 
having  been  permitted  to  establish;  and  that,  as  Mr.  Stephens 
has  said,  instead  of  becoming  gods,  by  bursting  from  the 
restraints  of  this  Eden,  they  will  discover  their  own  naked 
ness,  and,  instead  of  finding  peace  and  prosperity,  they  will 
come  to  cutting  their  own  throats. 

Now,  what  is  the  duty  of  a  Government  that  finds  this 
assault  made  by  the  hands  of  terror  and  of  force  against  the 
judgment  and  wishes  of  the  discreet,  sober,  and  temperate, 
at  least,  to  those  to  whom  it  owes  protection,  as  they  owe 
allegiance  to  it?  What,  but  to  carry  on,  by  the  force  of  the 
Government,  the  actual  suppression  of  the  rebellion,  so 
that  arms  may  be  laid  down,  peace  may  exist,  and  the  law 
and  the  Constitution  be  reinstated,  and  the  great  debate  of 
opinion  be  restored,  that  has  been  interrupted  by  this  vehe- 


204         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

ment  recourse  to  arms?  What,  but  to  see  to  it  that,  instead 
of  the  consequences  of  this  revolt  being  an  expulsion,  from 
this  Paradise  of  free  Government,  of  these  people  whom  we 
ought  to  keep  within  it,  it  shall  end  in  the  expulsion  of  that 
tempting  serpent — be  it  secession  or  be  it  slavery — that 
would  drive  them  out  of  it.  Government  has  duties,  gentle 
men,  as  well  as  rights.  If  our  lives  and  our  property  are 
subject  to  its  demands  under  the  penal  laws,  or  for  its 
protection  and  enforcement  as  an  authority  in  the  world, 
it  carries  to  every  citizen,  on  the  farthest  sea,  in  the  humblest 
schooner,  and  to  the  great  population  of  these  Southern 
States  in  their  masses  at  home,  that  firm  protection  which 
shall  secure  him  against  the  wicked  and  the  willful  assaults, 
whether  it  be  of  a  pirate  on  a  distant  sea,  or  of  an  ambitious 
and  violent  tyranny  upon  land.  When  this  state  of  peace 
and  repose  is  accomplished  by  Conventions,  by  petitions,  by 
representations  against  Federal  laws,  Federal  oppressions, 
or  Federal  principles  of  Government,  the  right  of  the  people 
to  be  relieved  from  oppression  is  presented;  and  then  may 
the  spirit  and  the  action  of  our  fathers  be  invoked,  and  their 
condemnation  of  the  British  Parliament  come  in  play,  if  we 
do  not  do  what  is  right  and  just  in  liberating  an  oppressed 
people.  But  I  need  not  say  to  you  that  the  whole  active 
energies  of  this  system  of  terror  and  of  force  in  the  Southern 
states  have  been  directed  to  make  impossible  precisely  the 
same  debate,  the  same  discussion,  the  same  appeal,  and  the 
same  just  and  equal  attention  to  the  appeal.  And  you  will 
find  this  avowed  by  many  of  their  speakers  and  many  of 
their  writers — as,  when  Mr.  Toombs  interrupts  Mr.  Steph 
ens  in  the  speech  I  have  quoted  from,  when  urging  that  the 
people  of  Georgia  should  be  consulted,  by  saying:  "I  am 
afraid  of  Conventions  and  afraid  of  the  people;  I  do  not  want 
to  hear  from  the  cross-roads  and  the  groceries,"  which  are 
the  opportunities  of  public  discussion  and  influence,  it  ap 
pears,  in  the  State  of  Georgia.  That  is  exactly  what  they 


THE  SAVANNAH  PRIVATEERS  205 

did  not  want  to  hear  from;  and  their  rash  withdrawal  of  this 
great  question  from  such  honest,  sensible  consideration,  will 
finally  bring  them  to  a  point  that  the  people,  interested  in 
the  subject,  will  take  it  by  force;  and  then,  besides  their  own 
nakedness,  which  they  have  now  discovered,  the  second 
prophecy  of  Mr.  Stephens,  that  they  will  cut  their  own 
throats,  will  come  about;  and  nothing  but  the  powerful  yet 
temperate,  the  firm  yet  benign,  authority  of  this  Govern 
ment,  compelling  peace  upon  these  agitations,  will  save 
those  communities  from  social  destruction  and  from  inter 
necine  strife  at  home. 

Now,  having  such  an  object,  can  it  be  accomplished?  It 
cannot,  unless  you  try;  and  it  cannot,  if  every  soldier  who 
goes  into  the  field  concludes  that  he  will  not  fire  off  his  gun, 
for  it  is  uncertain  whether  it  will  end  the  war;  or  if,  on  any 
post  of  duty  that  is  devolved  upon  citizens  in  private  life, 
we  desert  our  Government,  and  our  full  duty  to  the  Govern 
ment.  But  that  it  can  be  done,  and  that  it  will  be  done,  and 
that  all  this  talk  and  folly  about  conquering  eight  millions 
of  people  will  result  in  nothing,  I  find  no  room  to  doubt. 
In  the  first  place,  where  are  your  eight  millions?  Why, 
there  are  the  fifteen  Slave  States,  and  four  of  them — Mary 
land,  Delaware,  Kentucky,  and  Missouri — are  not  yet  within 
the  Confederacy.  So  we  will  subtract  three  millions,  at 
least,  for  that  part  of  the  concern.  Then  there  are  five  mil 
lions  to  be  conquered;  and  how  are  they  to  be  conquered? 
Why,  not  by  destruction,  not  by  slaughter,  not  by  chains 
and  manacles;  but  by  the  impression  of  the  power  of  the 
Government,  showing  that  the  struggle  is  vain,  that  the 
appeal  to  arms  was  an  error  and  a  crime,  and  that,  in  the 
region  of  debate  and  opinion,  and  in  equal  representation 
in  the  Government  itself,  is  the  remedy  for  all  grievances  and 
evils.  Be  sure  that,  whatever  may  be  said  or  thought  of 
this  question  of  war,  these  people  can  be,  not  subjugated, 
but  compelled  to  entertain  those  inquiries  by  peaceful 


206         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

means;  and  I  am  happy  to  be  able  to  say  that  the  feeble 
hopes  and  despairing  views  which  my  learned  friend,  Mr. 
Brady,  has  thought  it  his  duty  to  express  before  you,  as  to 
the  hopelessness  of  any  useful  result  in  these  hostilities,  is 
not  shared  by  one  whom  my  friend,  in  the  eloquent  climax 
to  an  oration,  placed  before  us  as  "starting,  in  a  red  shirt,  to 
secure  the  liberties  of  Italy."  I  read  his  letter: 

"CAPRERA,  Sept.  10. 

"Dear  Sir:  I  saw  Mr.  Sanford,  and  regret  to  be  obliged  to 
announce  to  you  that  I  shall  not  be  able  to  go  to  the  United 
States  at  present.  I  do  not  doubt  the  triumph  of  the  cause 
of  the  Union,  and  that  shortly;  but,  if  the  war  should  unfor 
tunately  continue  in  your  beautiful  country,  I  shall  over 
come  the  obstacles  which  detain  me  and  hasten  to  the  defence 
of  a  people  who  are  dear  to  me. 

"G.  GARIBALDI." 

Garibaldi  has  had  some  experience,  and  knows  the  differ 
ence  between  efforts  to  make  a  people  free,  and  the  warlike 
and  apparently  successful  efforts  of  tyranny;  and  he  knows 
that  a  failure,  even  temporary,  does  not  necessarily  secure 
to  force,  and  fraud,  and  violence  a  permanent  success.  He 
knows  the  difference  between  restoring  a  misguided  people 
to  a  free  Government,  and  putting  down  the  efforts  of  a 
people  to  get  up  a  free  Government.  He  knows  those  are  two 
different  things;  and,  if  the  war  be  not  shortly  ended,  as  he 
thinks  it  will  be,  then  he  deems  it  right  for  him,  fresh  from 
the  glories  of  securing  the  liberties  of  Italy,  to  assist  in  main 
taining — what?  Despotism?  No!  the  liberties  of  America. 

One  of  the  learned  counsel,  who  addressed  you  in  a  strain 
of  very  effective  and  persuasive  eloquence,  charmed  us  all 
by  the  grace  of  his  allusion  to  a  passage  in  classical  history, 
and  recalled  your  attention  to  the  fact  that,  when  the  States 
of  Greece  which  had  warred  against  Athens,  anticipating  her 
downfall  beneath  the  prowess  of  their  arms,  met  to  determine 


THE  SAVANNAH  PRIVATEERS  207 

her  fate,  and  when  vindictive  Thebes  and  envious  Corinth 
counseled  her  destruction,  the  genius  of  the  Athenian  Sopho 
cles,  by  the  recital  of  the  chorus  of  the  Electra,  disarmed  this 
cruel  purpose,  by  reviving  the  early  glories  of  united  Greece. 
And  the  counsel  asked  that  no  voice  should  be  given  to 
punish  harshly  these  revolted  States,  if  they  should  be  con 
quered. 

The  voice  of  Sophocles,  in  the  chorus  of  the  Electra,  and 
those  glorious  memories  of  the  early  union,  were  produced 
to  bring  back  into  the  circle  of  the  old  confederation  the 
erring  and  rebellious  Attica.  So,  too,  what  shall  we  find 
in  the  memories  of  the  Revolution,  or  in  the  eloquence  with 
which  we  have  been  taught  to  revere  them,  that  will  not 
urge  us  all,  by  every  duty  to  the  past,  to  the  present,  and  to 
the  future,  to  do  what  we  can,  whenever  a  duty  is  reposed  in 
us,  to  sustain  the  Government  in  its  rightful  assertion  of 
authority  and  in  the  maintenance  of  its  power?  Let  me  ask 
your  attention  to  what  has  been  said  by  the  genius  of  Web 
ster,  on  so  great  a  theme  as  the  memory  of  Washington, 
bearing  directly  on  all  these  questions  of  union,  of  glory,  of 
hope,  and  of  duty,  which  are  involved  in  this  inquiry.  See 
whether,  from  the  views  thus  invoked,  there  will  not  follow 
the  same  influence  as  from  the  chorus  of  the  Electra,  for  the 
preservation,  the  protection,  the  restoration  of  every  portion 
of  what  once  was,  and  now  is,  and,  let  us  hope,  ever  shall  be, 
our  common  country. 

On  the  occasion  of  the  centennial  anniversary  of  the  birth 
day  of  Washington,  at  the  national  Capitol,  in  1832,  Mr. 
Webster,  by  the  invitation  of  men  in  public  station  as  well 
as  of  the  citizens  of  the  place,  delivered  an  oration,  about 
which  I  believe  the  common  judgment  of  his  countrymen 
does  not  differ  from  what  is  known  to  have  been  his  own 
idea,  that  it  was  the  best  presentation  of  his  views  and  feel 
ings  which,  in  the  long  career  of  his  rhetorical  triumphs, 
he  had  had  the  opportunity  to  make. 


208         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

No  man  ever  thought  or  spoke  of  the  character  of  Wash 
ington,  and  of  the  great  part  in  human  affairs  which  he 
played,  without  knowing  and  feeling  that  the  crowning 
glory  of  all  his  labors  in  the  field  and  in  the  council,  and  the 
perpetual  monument  to  his  fame,  if  his  fame  shall  be  per 
petual,  would  be  found  in  the  establishment  of  the  American 
Union  under  the  American  Constitution.  All  the  prowess 
of  the  war,  all  the  spirit  of  the  Revolution,  all  the  fortitude 
of  the  effort,  all  the  self-denial  of  the  sacrifice  of  that  period, 
were  for  nothing,  and  worse  than  nothing,  if  the  result  and 
consummation  of  the  whole  were  to  be  but  a  Government  that 
contained  within  itself  the  seeds  of  its  own  destruction,  and 
existed  only  at  the  caprice  and  whim  of  whatever  part  of 
the  people  should  choose  to  deny  its  rightfulness  or  seek  to 
overthrow  its  authority.  In  pressing  that  view,  Mr.  Web 
ster  thus  attracts  the  attention  of  his  countrymen  to  the 
great  achievements  in  human  affairs  which  the  establishment 
of  this  Government  has  proved  to  be,  and  thus  illustrates 
the  character  of  Washington : 

"It  was  the  extraordinary  fortune  of  Washington  that, 
having  been  intrusted,  in  revolutionary  times,  with  the  su 
preme  military  command,  and  having  fulfilled  that  trust  with 
equal  renown  for  wisdom  and  for  valor,  he  should  be  placed 
at  the  head  of  the  first  Government  in  which  an  attempt  was 
to  be  made,  on  a  large  scale,  to  rear  the  fabric  of  social  order 
on  the  basis  of  a  written  Constitution  and  of  a  pure  represent 
ative  principle.  A  Government  was  to  be  established,  with 
out  a  throne,  without  an  aristocracy,  without  castes,  orders, 
or  privileges;  and  this  Government,  instead  of  being  a 
democracy,  existing  and  acting  within  the  walls  of  a  single 
city,  was  to  be  extended  over  a  vast  country,  of  different 
climates,  interests  and  habits,  and  of  various  communions  of 
our  common  Christian  faith.  The  experiment  certainly  was 
entirely  new.  A  popular  Government  of  this  extent,  it  was 
evident,  could  be  framed  only  by  carrying  into  full  effect 


THE  SAVANNAH  PRIVATEERS  209 

the  principle  of  representation  or  of  delegated  power;  and 
the  world  was  to  see  whether  society  could,  by  the  strength 
of  this  principle,  maintain  its  own  peace  and  good  govern 
ment,  carry  forward  its  own  great  interests,  and  conduct 
itself  to  political  renown  and  glory. 

***** 

"I  remarked,  gentlemen,  that  the  whole  world  was  and  is 
interested  in  the  result  of  this  experiment.  And  is  it  not 
so?  Do  we  deceive  ourselves,  or  is  it  true  that  at  this  mo 
ment  the  career  which  this  Government  is  running  is  among 
the  most  attractive  objects  to  the  civilized  world?  Do  we 
deceive  ourselves,  or  is  it  true  that  at  this  moment  that  love 
of  liberty  and  that  understanding  of  its  true  principles, 
which  are  flying  over  the  whole  earth,  as  on  the  wings  of  all 
the  winds,  are  really  and  truly  of  American  origin? 
***** 

"Gentlemen,  the  spirit  of  human  liberty  and  of  free  Gov 
ernment,  nurtured  and  grown  into  strength  and  beauty  in 
America,  has  stretched  its  course  into  the  midst  of  the  na 
tions.  Like  an  emanation  from  Heaven,  it  has  gone  forth, 
and  it  will  not  return  void.  It  must  change,  it  is  fast  chang 
ing,  the  face  of  the  earth.  Our  great,  our  high  duty,  is  to 
show,  in  our  own  example,  that  this  spirit  is  a  spirit  of  health 
as  well  as  a  spirit  of  power;  that  its  longevity  is  as  great  as 
its  strength;  that  its  efficiency  to  secure  individual  rights, 
social  relations,  and  moral  order,  is  equal  to  the  irresistible 
force  with  which  it  prostrates  principalities  and  powers. 
The  world  at  this  moment  is  regarding  us  with  a  willing,  but 
something  of  a  fearful,  admiration.  Its  deep  and  awful 
anxiety  is  to  learn  whether  free  States  may  be  stable  as  well 
as  free;  whether  popular  power  may  be  trusted,  as  well  as 
feared;  in  short,  whether  wise,  regular,  and  virtuous  self- 
government  is  a  vision  for  the  contemplation  of  theorists, 
or  a  truth  established,  illustrated,  and  brought  into  practice 
in  the  country  of  Washington. 

16 


210         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

"Gentlemen,  for  the  earth  which  we  inhabit,  and  the  whole 
circle  of  the  sun,  for  all  the  unborn  races  of  mankind,  we 
seem  to  hold  in  our  hands,  for  their  weal  or  woe,  the  fate  of 
this  experiment.  If  we  fail,  who  shall  venture  the  repeti 
tion?  If  our  example  shall  prove  to  be  one,  not  of  encour 
agement,  but  of  terror,  not  fit  to  be  imitated,  but  fit  only  to 
be  shunned,  where  else  shall  the  world  look  for  free  models? 
If  this  great  Western  Sun  be  struck  out  of  the  firmament,  at 
what  other  fountain  shall  the  lamp  of  liberty  hereafter  be 
lighted?  What  other  orb  shall  emit  a  ray  to  glimmer,  even, 
on  the  darkness  of  the  world? 

***** 

"The  political  prosperity  which  this  country  has  attained 
and  which  it  now  enjoys,  has  been  acquired  mainly  through 
the  instrumentality  of  the  present  Government.  While 
this  agent  continues,  the  capacity  of  attaining  to  still  higher 
degrees  of  prosperity  exists  also.  We  have,  while  this  lasts, 
a  political  life  capable  of  beneficial  exertion,  with  power  to 
resist  or  overcome  misfortunes,  to  sustain  us  against  the 
ordinary  accidents  of  human  affairs,  and  to  promote,  by 
active  efforts,  every  public  interest.  But  dismemberment 
strikes  at  the  very  being  which  preserves  these  faculties. 
It  would  lay  its  rude  and  ruthless  hand  on  this  great  agent 
itself.  It  would  sweep  away,  not  only  what  we  possess,  but 
all  power  of  regaining  lost,  or  acquiring  new,  possessions. 
It  would  leave  the  country,  not  only  bereft  of  its  prosperity 
and  happiness,  but  without  limbs,  or  organs,  or  faculties  by 
which  to  exert  itself  hereafter  in  the  pursuit  of  that  prosperity 
and  happiness. 

"Other  misfortunes  may  be  borne,  or  their  effects  overcome. 
If  disastrous  war  should  sweep  our  commerce  from  the  ocean, 
another  generation  may  renew  it;  if  it  exhaust  our  treasury, 
future  industry  may  replenish  it;  if  it  desolate  and  lay 
waste  our  fields,  still,  under  a  new  cultivation,  they  will 
grow  green  again,  and  ripen  to  future  harvests.  It  were  but 


THE  SAVANNAH  PRIVATEERS 

a  trifle  even  if  the  walls  of  yonder  Capitol  were  to  crumble, 
if  its  lofty  pillars  should  fall,  and  its  gorgeous  decorations 
be  all  covered  by  the  dust  of  the  valley.  All  these  might  be 
rebuilt.  But  who  shall  reconstruct  the  fabric  of  demolished 
Government?  Who  shall  rear  again  the  well-proportioned 
columns  of  constitutional  liberty?  Who  shall  frame  to 
gether  the  skillful  architecture  which  unites  national  sover 
eignty  with  State  rights,  individual  security,  and  public 
prosperity?  No,  if  these  columns  fall,  they  will  be  raised 
not  again.  Like  the  Coliseum  and  the  Parthenon,  they  will 
be  destined  to  a  mournful,  a  melancholy  immortality.  Bit 
terer  tears,  however,  will  flow  over  them,  than  were  ever 
shed  over  the  monuments  of  Roman  or  Grecian  art;  for  they 
will  be  the  remnants  of  a  more  glorious  edifice  than  Greece 
or  Rome  ever  saw — the  edifice  of  constitutional  American 

liberty. 

***** 

"A  hundred  years  hence  other  disciples  of  Washington  will 
celebrate  his  birth,  with  no  less  of  sincere  admiration  than 
we  now  commemorate  it.  When  they  shall  meet,  as  we 
now  meet,  to  do  themselves  and  him  that  honor,  so  surely 
as  they  shall  see  the  blue  summits  of  his  native  mountains 
rise  in  the  horizon,  so  surely  as  they  shall  behold  the  river 
on  whose  banks  he  lived,  and  on  whose  banks  he  rests,  still 
flowing  on  toward  the  sea,  so  surely  may  they  see,  as  we 
now  see,  the  flag  of  the  Union  floating  on  the  top  of  the 
Capitol;  and  then,  as  now,  may  the  sun  in  his  course  visit 
no  land  more  free,  more  happy,  more  lovely,  than  this  our 
own  country!" 

If,  gentlemen,  the  eloquence  of  Mr.  Webster,  which  thus 
enshrines  the  memory  and  the  great  life  of  Washington,  calls 
us  back  to  the  glorious  recollections  of  the  Revolution  and 
the  establishment  of  our  Government,  does  it  not  urge  every 
man  everywhere  that  his  share  in  this  great  trust  is  to  be 
performed  now  or  never,  and  wherever  his  fidelity  and  his 


SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

devotion  to  his  country,  its  Government,  and  its  spirit, 
shall  place  the  responsibility  upon  him?  It  is  not  the  fault 
of  the  Government,  of  the  learned  District  Attorney,  or  of 
me,  his  humble  associate,  that  this,  your  verdict,  has  been 
removed,  by  the  course  of  this  argument  and  by  the  course 
of  this  eloquence  on  the  part  of  the  prisoners,  from  the  simple 
issue  of  the  guilt  or  innocence  of  these  men  under  the  statute. 
It  is  not  the  action  or  the  choice  of  the  Government,  or  of 
its  counsel,  that  you  have  been  drawn  into  higher  considera 
tions.  It  is  not  our  fault  that  you  have  been  invoked  to  give, 
on  the  undisputed  facts  of  the  case,  a  verdict  which  shall  be 
a  recognition  of  the  power,  the  authority,  and  the  right  of 
the  rebel  Government  to  infringe  our  laws,  or  partake  in  the 
infringement  of  them,  to  some  form  and  extent.  And  now, 
here  is  your  duty,  here  your  post  of  fidelity — not  against 
law,  not  against  the  least  right  under  the  law,  but  to  sustain, 
by  whatever  sacrifice  there  may  be  of  sentiment  or  of  feeling, 
the  law  and  the  Constitution.  I  need  not  say  to  you, 
gentlemen,  that  if,  on  a  state  of  facts  which  admits  no  di 
versity  of  opinion,  with  these  opposite  forces  arrayed,  as 
they  now  are,  before  you — the  Constitution  of  the  United 
States,  the  laws  of  the  United  States,  the  commission  of  this 
learned  Court,  derived  from  the  Government  of  the  United 
States,  the  venire  and  the  empanneling  of  this  Jury,  made 
under  the  laws  and  by  the  authority  of  the  United  States, 
on  our  side — met,  on  their  side,  by  nothing,  on  behalf  of 
the  prisoners,  but  the  commission,  the  power,  the  right,  the 
authority  of  the  rebel  Government,  proceeding  from  Jef 
ferson  Davis — you  are  asked,  by  the  law,  or  under  the  law, 
or  against  the  law,  in  some  form,  to  recognize  this  power,  and 
thus  to  say  that  the  folly  and  the  weakness  of  a  free  Govern 
ment  find  here  their  last  extravagant  demonstration,  then 
you  are  asked  to  say  that  the  vigor,  the  judgment,  the  sense, 
and  the  duty  of  a  Jury,  to  confine  themselves  to  their  respon 
sibility  on  the  facts  of  the  case,  are  worthless  and  yielding 


THE  SAVANNAH  PRIVATEERS  213 

before  impressions  of  a  discursive  and  loose  and  general 
nature.  Be  sure  of  it,  gentlemen,  that,  on  what  I  suppose 
to  be  the  facts  concerning  this  particular  transaction,  a 
verdict  of  acquittal  is  nothing  but  a  determination  that  our 
Government  and  its  authority,  in  the  premises  of  this  trial, 
for  the  purposes  of  your  verdict,  are  met  and  overthrown  by 
the  protection  thrown  around  the  prisoners  by  the  Govern 
ment  of  the  Confederate  States  of  America,  actual  or  in 
cipient.  Let  us  hope  that  you  will  do  what  falls  to  your 
share  in  the  post  of  protection  in  which  you  are  placed,  for 
the  liberties  of  this  nation  and  the  hopes  of  mankind;  for,  in 
surrendering  them,  you  will  be  forming  a  part  of  the  record 
on  the  common  grave  of  the  fabric  of  this  Government,  and 
of  the  hopes  of  the  human  race,  where  our  flag  shall  droop, 
with  every  stripe  polluted  and  every  star  erased,  and  the 
glorious  legend  of  "Liberty  and  Union,  now  and  forever,  one 
and  inseparable,"  replaced  by  this  mournful  confession, 
"Unworthy  of  freedom,  our  baseness  has  surrendered  the 
liberties  which  we  had  neither  the  courage  nor  the  virtue  to 
love  or  defend." 


Ill 

ARGUMENT  IN  THE  UNITED  STATES  SUPREME 
COURT  ON  BEHALF  OF  THE  GOVERNMENT 
IN  THE  CASE  OF  PETER  MILLER  AND 
OTHERS,  CLAIMANTS  OF  THE  BARQUE  HIA 
WATHA,  ETC.,  AGAINST  THE  UNITED  STATES, 
AND  OTHER  CASES.  (THE  PRIZE  CASES.) 

NOTE 

What  were  known  at  the  time,  and  are  reported  in  the  Supreme 
Court  Reports,  as  the  "Prize  Cases"  (2  Black,  635-699)  arose  very 
soon  after  the  outbreak  of  the  Civil  War,  from  the  capture  by 
vessels  of  the  United  States  Navy  of  vessels  and  cargoes,  either  on 
the  high  seas  or  in  the  course  of  attempted  breach  of  the  blockade 
of  Southern  ports,  which  had  been  established  under  the  proclama 
tions  of  President  Lincoln.  The  vessels  and  cargoes  in  question 
were  captured  under  claim  of  lawful  prize  under  the  laws  of  war 
and  taken  into  the  ports  of  the  United  States,  where  condemnation 
under  the  law  of  Prize  Courts  followed.  The  cases,  four  in  num 
ber,  came  before  the  Supreme  Court  on  appeals  from  the  judgments 
of  condemnation,  two  from  the  U.  S.  Circuit  Court  for  the  Southern 
District  of  New  York,  one  from  the  United  States  District  Court 
for  the  Southern  District  of  Florida,  and  one  from  the  United 
States  Circuit  Court  for  the  District  of  Massachusetts.  It  was 
arranged  with  the  Court  by  the  various  counsel  engaged  that 
argument  upon  all  the  cases  should  be  had  at  the  same  time. 

The  general  questions  involved  in  the  decision  of  these  cases  may 
be  stated  in  the  language  of  the  Court  at  the  very  beginning  of  the 
opinion  delivered  by  Mr.  Justice  Grier.  The  Court  says:  "There 
are  certain  propositions  of  law  which  must  necessarily  affect  the  ul 
timate  decision  of  these  cases  and  many  others,  which  it  will  be 
proper  to  discuss  and  decide  before  we  notice  the  special  facts 
peculiar  to  each.  They  are : 

1st.  Had  the  President  a  right  to  institute  a  blockade  of  ports 
in  possession  of  persons  in  armed  rebellion  against  the  government, 

214 


THE  PRIZE  CASES  215 

on  the  principles  of  International  Law,  as  known  and  acknowledged 
among  civilized  States? 

2nd.  Was  the  property  of  persons  domiciled  or  residing  within 
those  States  a  proper  subject  of  capture  on  the  sea  as  "enemies* 
property"? 

Mr.  Evarts  was  retained  by  the  Government  in  the  court  of 
first  instance  and  in  the  Supreme  Court  in  the  two  cases  originat 
ing  in  New  York.  The  case  arising  in  the  United  States  Circuit 
Court  for  the  District  of  Massachusetts  was  conducted  on  behalf 
of  the  Government  by  Richard  H.  Dana,  Jr.,  then  U.  S.  District 
Attorney  for  Massachusetts,  and  involved  the  sole  question  of 
"enemies'  property."  Mr.  Dana  took  a  very  prominent  and 
effective  part  in  the  Argument  before  the  Supreme  Court,  and 
added  much  to  his  reputation.  The  Argument  in  these  cases 
occupied  twelve  days:  February  10  to  13,  16  to  20  and  23  to  25, 
1863,  and  the  decision  in  favor  of  the  Government's  contention  was 
rendered  on  the  10th  of  the  following  month.  Mr.  Evarts  filed  a 
general  brief  covering  all  the  cases  and  made  the  argument  that 
follows. 

ARGUMENT 

FIRST    DAY 

May  it  please  the  Court :  Although  the  importance  of  the 
questions  which  have  been  presented,  and  properly  pre 
sented,  in  the  argument  of  this  case  before  this  Court  can 
not  well  be  exaggerated,  yet  I  am  persuaded  that  whatever 
novelty  attaches  to  them  is  to  be  found  more  in  the  attitude 
of  our  nation  and  our  government  to  them  than  in  the  prin 
ciples  by  which  their  decision  is  to  be  controlled;  and  the 
deep  solicitude  which  watches  the  investigation  and  expects 
your  just  judgment  is  due  much  more  to  the  vital  interest 
that  we  all  feel  in  them  than  to  any  difficulty  which  is  to 
attend  their  solution.  For  war  is  no  stranger  on  the  theatre 
of  human  affairs;  and  whether  it  comes  heralded  and  with 
acclaim  or  unbidden  and  unwelcome,  it  brings  its  whole 
train  with  it,  and  while  it  remains  it  is  master  of  the  scene. 


216         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

War  never  comes  till  peace  is  gone,  and  peace  never  returns 
till  war  is  over.  They  play  no  parts  together  on  the  same 
stage  and  at  the  same  time.  Brief  as  is  the  history  of  our 
own  nation — not  so  long  in  its  duration  yet  but  that  those 
who  have  reached  the  Homeric  fame 

"renowned  for  justice  and  for  length  of  years" 

have  seen  its  origin  and  now  may  contemplate  the  menace 
of  its  end — yet  it  has  had  experience  of  every  kind  and  form 
of  war.  It  came  into  being  through  the  war  of  the  revolu 
tion,  which  was,  in  its  origin,  a  civil  war,  and  worked  itself 
up  only  on  the  part  of  the  revolting  colonies  to  a  public  war 
through  the  successes  of  their  arms;  and  never  till  its  close, 
in  the  recognition  by  the  parent  government  making  our 
nationality  wholly  legitimate,  was  it  esteemed  by  the  other 
belligerent  power  as  other  in  its  character,  or  in  the  leading 
principles  which  should  govern  it,  than  a  war  of  rebellion. 

So  too,  we,  as  neutrals,  during  the  long  contest  growing 
out  of  the  French  revolution,  stood  as  witnesses  of  public 
war,  in  the  attitude  specially  relevant  to  the  public  law  gov 
erning  public  war,  for  our  attitude  as  neutrals  thus  brought 
us  in  connection  with  it. 

At  the  close  of  the  century,  in  1798-9,  we  were  involved  in 
partial  or  in  perfect  war  with  France,  and  then  learned  that 
while  it  was  war,  and  while,  to  the  extent  and  purport  and 
purpose  of  its  hostilities,  it  imported  the  law  as  well  as  the 
force  of  war,  yet  the  national  power  which  limited  the  extent 
and  character  and  effort  of  the  hostilities,  regulated  as  well, 
by  the  same  measure  however  and  by  that  alone,  the  appli 
cation  of  the  laws  of  war. 

In  1812,  in  the  open  and  public  war  with  England,  we 
came  fully  under  the  jurisdiction  of  the  law  of  nations  in 
its  simplest  form  of  absolute,  adverse  belligerents. 

During  the  civil  commotions  which  raised  the  Spanish- 
American  colonies  into  independent  states — during  their 


THE  PRIZE  CASES  217 

war  of  independence,  civil  and  public  on  one  side  or  on  the 
other — we,  as  neutrals,  had  our  part  to  play,  and  most 
usefully  we  took  the  lead  in  establishing  the  principles  and 
according  to  them  the  practical  results  which  should  gov 
ern  such  a  contest  as  that. 

In  the  war  with  Mexico,  a  war  in  self-defence,  if  you  please, 
turned,  as  the  Romans  turned  their  wars  of  self-defence,  into 
conquest,  this  Court  had  occasion  to  expound,  to  instruct 
the  people,  and  to  establish  for  the  guidance  of  the  future 
the  principles  which  can  govern  a  constitutional  govern 
ment  and  the  application  of  all  the  powers  of  war — not 
withstanding,  a  constitutional  rule  for  its  still  proceeding 
into  the  domain  of  conquest. 

And  now  we  have  the  present  war  in  which  we  occupy,  in 
some  sort  at  least, — to  the  apprehension  of  ourselves,  per 
haps,  somewhat  less  than  in  the  impartial  observation  of 
neutral  nations — the  attitude  which  Great  Britain  held  to 
our  struggle  for  independence,  which  Spain  held  to  her 
revolted  or  warring  colonies.  It  is  true,  in  both  of  those 
contests  there  was  present  a  marked  fact,  forming  a  leading 
feature  of  each  of  these  transactions,  which  we  miss  here. 
The  wide  intervention  of  the  ocean  separating  the  revolting 
colonies,  in  one  case  and  the  other,  from  the  parent  country, 
and  the  separate  and  independent  development  under  which 
the  colonies  in  revolt  had  grown  up,  gave  to  those  great 
transactions  more  the  form  of  that  struggle  in  the  womb  of 
the  parent  nation  and  that  separation  of  the  offspring  of 
the  mother  which  seemed  a  natural  birth  of  a  nation  in  prog 
ress  of  time.  But,  in  this  war,  no  such  similes  of  hope  and 
promise  attend  the  contest.  It  is  all  of  partition  of  a  united 
people.  It  is  a  dismemberment  of  mutilation  and  of  ruin. 
And  though  we  thus  find  that  the  terrible  traits  and  conse 
quences  of  purely  intestine  war  seem  more  brought  home  to 
us  in  this  controversy  than  in  the  Spanish-American  instance, 
or  in  the  history  of  our  own  revolution,  yet  we  shall  find  that, 


218         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

after  all,  so  far  as  those  traits  and  features  are  concerned 
that  are  to  affect  our  estimate  of  the  character  of  the  con 
flict — the  fact  of  the  confederated  form  of  our  government, 
the  distribution  of  powers  in  the  general  and  among  the  State 
governments,  giving  to  the  effort  and  front  of  war,  without 
its  legality  of  political  tie  and  alliance,  nevertheless,  the  form 
of  organized  communities  struggling  as  if  an  existing  or 
nascent  state  against  the  parent  government — all  this,  if  the 
Court  please,  should  satisfy  us  that  the  situation,  full  as  it 
is  of  public  and  of  private  griefs,  for  the  first  time  to  us,  is, 
however,  a  situation  not  novel  or  unfurnished  with  guidance 
in  the  history  of  the  world.  We  may  know  and  feel  that  the 
instruction  in  the  law  of  war  which  this  nation  has  gained 
through  those  experiences  are  to  serve  for  its  rules  now;  for 
we  know:  "Nee  erit  alia  lex  Romae  alia  Athenis,  alia  nunc, 
alia  posthac,  sed  ad  omnes  gentes,  et  omni  tempore,  una  lex; 
et  sempiterna  et  immutablis  continebit." 

The  law  which  we  are  to  administer  is  not  different  from 
that  which  is  to  be  administered  in  the  courts  of  London  and 
in  the  courts  of  Paris.  It  is  not  other  than  was  administered 
at  the  period  of  our  own  revolution,  or  during  the  struggle 
of  the  Spanish-American  states.  But,  furnishing  its  pure, 
its  everlasting  and  unchangeable  rules,  we  are  to  bring  the 
facts  of  our  situation  for  its  entire  and  perfect  judgment. 

Now,  if  this  public  and  universal  law  of  nations  is  to  be  the 
guide  of  the  determinations  of  this  Court,  is  there  anything 
in  the  fact  that  this  Court  sits  under  a  constitutional  gov 
ernment  and  derives  its  power  and  authority  through  a 
constitutional  government,  ruled  over  by  the  organic  law, 
that  makes  its  administration  other  and  different,  more 
limited  or  more  confined,  than  the  simplicity  of  the  law  of 
nations  dictates  in  all  such  situations?  Why,  certainly  not. 
This  Court  sits  here,  in  its  full  Bench  precisely  in  the  same 
jurisdiction  as  the  Prize  Court. 

The  Prize  Court  derives  its  authority  from  the  federal 


THE  PRIZE  CASES  219 

Constitution,  by,  for  which,  and  to  whose  use,  it  is  imparted. 
That  authority  is  imparted  that  it  may  sit  as  a  court,  created 
and  exercising  the  municipal  law  of  the  country  that  created 
it,  and  existing  for  the  exposition  and  administration  of  the 
public  law,  the  law  of  nations;  and  when  this  principle  has 
been  furnished  by  our  constitution  and  our  laws  for  the  juris 
prudence  and  judicature  of  the  Prize  Court,  that  is  all  that 
is  furnished  it.  It  has  introduced  it  to  the  law  that  is  to 
govern  it,  as  is  well  expressed,  in  a  somewhat  similar  situation 
of  laws,  in  the  administration  of  the  judicature  of  a  court, 
by  the  celebrated  Sir  Wm.  Scott,  sitting  in  the  Consistory 
Court,  in  the  great  case  of  Dalrymple  and  Dalrymple,  which 
was  to  test  the  authenticity  of  a  Scotch  marriage: 

"As  the  case  is  considered  in  an  English  court,  it  must  be 
determined  by  the  principles  of  English  law,  that  are  appli 
cable  to  such  a  case.  But  the  only  principle  of  English  law 
furnished  for  the  case  is  that  the  validity  of  the  marriage  rites 
in  the  case  must  be  determined  according  to  the  principles — 
if  the  rites  existed  at  all — of  that  country  where  the  marriage 
had  its  origin.  Having  furnished  this  principle,  the  law  of 
England  retires  from  the  discussion  and  leaves  to  the  exclu 
sive  judgment  of  the  law  of  Scotland  the  decision  of  the  case/' 

Now,  if  the  Court  please,  before  asking  attention  to  the 
particular  considerations  which  may  be  necessary  before 
the  determining  of  the  case  in  argument  as  in  decision,  it 
behooves  us  first  to  look  at  the  situation,  at  the  absolute, 
incontrovertible,  predominating  facts  which  introduce  this 
subject  of  discussion.  My  learned  friend,  Mr.  Lord,  with 
much  weight  and  solemnity,  has  referred  to  the  difficulty, 
to  the  impossibility,  of  changing  a  past  fact  or  a  past  state 
of  facts.  He  has  even  ventured  to  say,  reverentially,  that 
omnipotent  power  could  not  find  that  within  its  scope.  Let 
me  ask  my  learned  friend  and  the  judgment  of  your  Honors, 
whether  there  is  not  the  same  difficulty  in  changing  exist 
ing  facts  or,  by  theories  or  contrivances  of  law,  obliterating, 


220        SPEECHES  OP  WILLIAM  MAXWELL  EVARTS 

obscuring,  or  defeating  them.  Is  not  a  present  fact,  is  not 
a  present  state  of  facts,  as  stubborn,  as  uncontrollable  by  the 
will  of  law-makers  and  of  law-givers,  as  a  past  state  of  facts? 

Now  the  situation  so  very  well  opened  to  your  Honors  by 
the  various  counsel  on  the  one  side  or  on  the  other  who  have 
addressed  you,  comes  substantially  to  this.  The  govern 
ment  of  the  United  States  by  its  constitution  and  its  laws, 
having  rightful  authority  over  the  whole  territory  of  the 
Union  and  over  all  its  population,  finds  itself,  at  the  middle 
of  April,  1861,  confronted  by  this  situation  of  affairs:  Polit 
ical  discontents,  civil  dissension,  civil  revolts,  civil  treasons, 
had  occupied  and  controlled  a  territory  which  had  for  its 
division  a  line  across  the  land  from  the  mouth  of  the  Chesa 
peake  to  the  waters  of  the  Missouri  River;  and  this  partition 
or  division,  held  under  not  the  least  authority  or  pretence  of 
authority  of  legislation,  as  proceeding  from  or  consistent 
with  the  maintenance  of  the  government  of  the  United 
States,  was  protected  and  defended  by  the  power  of  the  pop 
ulation  which  inhabited  it.  For  its  other  boundaries  it  had 
the  wide  reach  of  the  sea  coast,  from  the  same  point  of  de 
parture,  the  mouth  of  the  Chesapeake  to  the  mouth  of  the 
Rio  Grande,  taking  in  the  Atlantic  and  Gulf  coasts. 

This  revolt,  so  far  accomplished  as,  in  fact,  to  have  ex 
cluded  all  the  peaceful  authority  of  the  government  of  the 
United  States,  there  was  no  Court,  no  Judge,  no  marshall, 
no  prosecuting  officers,  no  jury  grand  or  petit,  that  could 
exercise  in  any  form  or  to  any  degree,  the  peaceful  authority 
of  the  government  of  the  United  States  within  that  entire 
region.  There  was  no  secondary  reinforcement  by  the  means 
of  civil  and  peaceful  authority,  that  in  any  part  of  that  ter 
ritory  or  for  any  part  of  that  people  could  be  brought  to 
support  the  peaceful  authority  of  the  government.  There 
was  no  power  of  any  county,  no  power  of  any  district  that 
maintained  the  authority  of  the  United  States  government 
or  would  have  obeyed  the  call  of  its  civil  magistracy. 


THE  PRIZE  CASES 

Now,  without  giving,  at  present,  the  least  attention  or 
effect  to  the  political,  the  legislative,  the  magisterial  pro 
ceedings  of  that  population,  or  on  this  theatre,  that  had  been 
adopted,  and  were  in  prosecution,  we  look  at  it  as  a  simple 
fact,  stubborn,  irresistible,  uncontrollable,  that  this  was  so. 

But  this  community,  thus  extensive  in  its  occupation  of 
territory,  thus  numerous  in  its  population,  was  also  a  commu 
nity,  like  that  of  the  rest  of  this  favored  nation,  advanced 
in  all  the  proficiencies  of  civilization  and  closely  connected 
in  the  most  powerful  relations  of  international  communica 
tion  by  the  paths  of  peaceful  commerce.  It  held  within  its 
possession  immense  staples,  the  object  of  desire  of  all  the 
world,  for  which  commerce,  now  as  heretofore,  was  ready 
to  venture  all  and  more  than  all  its  peaceful  risks.  It  was  in 
the  condition,  from  the  very  shape  and  form  in  which  its 
peaceful  commerce  was  developed,  of  needing  from  all  the 
rest  of  the  world,  in  exchange  for  those  great  staples,  what 
went  to  supply  the  demands  of  a  peaceful  people,  and,  still 
more  emphatically,  of  a  power  which  was  to  undertake  and 
to  prosecute  a  war. 

Now,  in  that  condition,  if  the  Court  please,  the  Govern 
ment  of  the  United  States  could  not  find  support  in  theory, 
in  legislation,  or  in  peace.  It  was  no  defect  of  our  laws, 
either  in  their  vigor,  or  in  their  scope,  or  in  their  multitude, 
that  our  authority  was  not  maintained  in  this  region  and 
over  this  people.  It  was  not  that  the  magistracy,  from  the 
President  down  to  the  marshalls  was  not  as  vigorous,  as  use 
ful  and  as  powerful  as  peaceful  magistracy  can  be  or  ever  was. 
It  was  not  that  against  resistance,  tumult,  and  disturbance 
that  fell  within  the  range  of  riot  or  emeute,  this  government 
was  not  powerful  enough  in  its  civil  magistracy  or  in  the 
power  of  the  loyal  people  who  were  ever  ready  to  attend  its 
call.  But  the  whole  fact  was  this — that  peace  was  sup 
pressed,  magistracy  excluded,  authority  derided  and  tram 
pled  under  foot,  and  by  mere  power  of  war. 


222         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

Now  the  Government  was  to  meet  this  situation.  How 
was  it  to  meet  it?  There  was  no  defect  in  its  legislation. 
There  was  no  defect  in  the  distribution  of  executive  power 
and  authority — not  the  least.  There  was  no  difficulty,  no 
failure,  no  inadequacy,  if  it  could  be  dealt  with  by  municipal 
law  and  through  the  municipal  power.  But  the  difficulty 
is  that  although,  as  our  learned  friend,  Mr.  Edwards,  said, 
domestic  trouble  is  under  municipal  law,  in  theory,  yet  when, 
in  fact,  it  rises  above  municipal  law,  the  statute  book  will 
not  execute  itself,  and  there  is  nothing  else  to  execute  it  in 
the  power  of  a  government  in  its  peaceful  administration. 

The  Government  must  surely  then  meet  this  situation. 
It  could  despair,  fold  its  hands,  betray  its  trust,  and  sur 
render  the  dignity,  the  power,  the  fame,  the  inheritance 
and  the  hopes  of  this  people,  to  a  rebellion  that  is  thus  suc 
cessful.  Whether  the  Government  should  do  that  rests  in 
the  breasts  of  the  people,  in  their  primary  capacity  or  in  the 
representative  majestatis,  the  Congress,  to  which  they  have 
entrusted  the  national  power.  But  if  you  pass  this  point, 
that  the  rebellion  is  not  yielded  to,  the  Government  not 
overthrown,  then  I  submit  that  I  go  into  no  loose  generali 
ties,  hang  on  no  uncertain  theories,  rest  on  no  legal  vagaries, 
when  I  say  that  the  Government  is  to  be  guided  and  con 
trolled  in  what  it  does,  by  the  facts  that  are  before  it.  For 
if  our  learned  friends  or  any  of  those  who  are  to  sit  in  judg 
ment  on  the  legal  rights  and  powers  of  the  Government  in 
this  situation,  had  been  called  into  its  responsible  counsels, 
when  the  moment  of  action  had  come,  and  the  moment  of 
useful  action  was  fast  passing  away,  I  take  it  that,  if  they 
had  resolved  to  meet  the  rebellion  and  to  suppress  it  by  the 
power  of  the  Government,  there  could  be  no  more  simple  and 
unanswerable  proposition  than  that  they  should  meet  it 
with  appropriate  means — not  by  means  that  might  have 
been,  or  that  had  been  appropriate  to  other  situations  in  the 
affairs  of  this  world,  or  to  other  situations  in  the  history  of 


THE  PRIZE  CASES  223 

our  own  Government,  but  by  means  that  were  appropriate 
to  the  actual  front  and  power,  and  threat  of  force  in  war, 
that  were  moved  against  the  Government,  and  having,  by 
that  necessary  reason,  adopted  appropriate  means,  it  seems 
but  the  next  step  in  the  plain  sense  of  the  transaction.  For 
as  well  settle  at  once  into  the  despairing  surrender  of  the 
power  of  the  Government,  as  to  find  ourselves  limited  by  the 
Constitution,  by  any  law  of  human  conduct  or  by  any  pre 
tence  of  constraint,  to  means  that  were  inappropriate  and 
inadequate.  Who  will  advise  to  apply  inappropriate  and  in 
adequate  means?  Who  will  advise  that  there  is  any  other 
instruction  or  control  as  to  what  is  suitable  and  appropriate, 
what  is  adequate  and  effectual,  except  a  wise  and  prudent 
and  dispassionate — I  agree — estimate,  but  still  an  estimate, 
of  the  mien  and  port,  the  proportions  and  dimensions,  the 
efforts  and  the  plans,  the  resources,  the  alliances,  the  con 
nection,  the  revenues,  the  supplies,  which  this  rebellion 
counts  among  its  appropriate  and  its  adequate  means  to 
overthrow  the  Government? 

Our  learned  friends  have  made  a  strange  reversal  of  a 
maxim  as  universal  as  human  nature,  and  as  permanent  as 
the  world's  history  or  future — "necessity  knows  no  law." 
But  I  hold  that  law,  constitutional  law,  the  law  of  a  free 
people,  knows  no  stress  and  no  necessity.  This  is  an  agree 
able,  as,  fortunately  for  us,  hitherto  it  has  been  a  practically 
true  view  of  the  situation  of  our  affairs.  But  if,  when  the 
stress  and  necessity  come  upon  us,  our  freedom  from  those 
constraints  has  enervated,  not  the  physical  power  of  the 
people  and  its  resources  for  war,  but  has  absolutely  enervated 
and  overthrown  the  primary  counsels  and  wisdom,  out  of 
which  alone  safety  can  grow  to  the  republic,  then  indeed 
have  we  fallen  a  final  victim  to  that  imputed  vice  of  free 
republics,  which  separates  debate  from  action,  resolve  from 
execution,  wisdom  from  power. 

Now,  he  who  shall  overlook,  in  dealing  with  this  rebellion, 


i 


224         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

the  facts  concerning  its  line  of  coast,  its  foreign  commerce,  its 
great  prizes  to  external  commerce  seeking  its  ports,  its  great 
needs,  its  great  needs  for  internal  commerce  to  supply  its 
war,  would,  in  the  judgment  of  all  wise  forecast,  and  in  the 
retrospect  of  history,  be  condemned  as  one  who  overlooked 
the  first  and  most  appropriate  means  and  object  for  the  appli 
cation  of  the  national  power,  and  that  which  promised  the 
most  of  adequacy  and  effect. 

But  it  does  arise  in  a  different  form,  in  respect  to  a  differ 
ent  subject,  and  on  a  diverse  exercise  of  the  power  of  war — 
maritime  capture,  either  in  the  sense  of  enemy  property, 
as  subject  to  it,  or  for  breach  of  blockade,  or  cargo  of  con 
traband  goods. 

Now,  your  Honors  will  perceive  that  in  all  the  cases  that  I 
have  proposed  on  which  the  question  might  arise  in  the 
operations  of  our  forces  on  land,  the  complainant  either  in 
criminal  or  in  civil  courts,  must  have  been  a  loyal  citizen  of 
the  United  States  defying  in  every  way  the  power  and  en 
treaties  of  the  persuaders  to  rebellion,  and  must  therefore 
be  within  all  the  principles  of  the  parental  obligation  of  the 
Government  to  him  and  of  the  protection  of  the  existing 
legislation  of  the  country,  and  of  its  administration  of  jus 
tice  in  the  courts,  that  have  been  invoked  for  these  claim 
ants  in  these  prize  cases.  And  then  your  Honors  would  have 
had  occasion  to  calculate  how  any  court  of  common  law  or 
equity  jurisprudence  should  have  interfered  with  or  ob 
structed  the  direct  application  of  the  power  of  the  Govern 
ment  in  the  form  of  war.  But  it  is  presented,  as  I  have  said, 
in  the  form  of  prize  judicature,  and  it  is  said  that  there  is 
wanting  that  necessary  support  and  element  of  municipal 
legislation  and  of  authority,  yea  even  in  the  law  of  nations, 
to  bring  maritime  capture  and  prize  of  war,  moved  against 
the  property,  in  trade,  of  loyal  citizens  within  the  region  of 
rebellion,  under  sentence  and  condemnation  in  a  prize  court. 

What  are  the  general  propositions  on  this  subject  needing 


THE  PRIZE  CASES  225 

to  be  contended  for  on  one  side  or  the  other,  and  which, 
with  greater  or  less  directness,  have  been  presented  to  your 
Honors?  On  the  part  of  the  Government  it  seems  to  me  that 
the  correct  statement  may  be  very  briefly  this:  That  when 
insurrection  or  rebellion  has  escaped  the  control  of  all  the 
means  open  to  the  peaceful  administration  of  Government, 
then  Government  may  apply  all  the  means  of  warlike  force 
for  the  reduction  of  the  power  of  rebellion,  against  per 
sons,  against  territory,  and  against  trade,  which  it  may  find 
appropriate  and  adequate  to  the  end  in  view,  and  which 
under  the  law  of  nations  governing  all  contests  of  force  which 
come  to  the  magnitude,  and  use  the  methods,  of  war,  are 
allowable  in  public  war. 

Now,  that  the  law  of  nations  does  govern  all  contests  of 
force  that  come  to  the  magnitude  and  use  the  methods  of 
war,  has  not  been  controverted  on  any  settled  authority  of  a 
publicist  or  well-adjudicated  case  in  the  courts  of  the  civil 
ized  nations.  The  question  is,  of  peace  or  war.  The  whole 
division  of  the  subject  of  public  jurisprudence  among  nations 
is  between  these  two  conditions — that  public  law  recognizing 
no  other.  I  refer  to  Grotius,  De  Jure  Belli  et  Pads.  Sir 
James  Mackintosh  says  that  "the  province  of  the  law  of 
nations  is  to  modify  the  intercourse  between  common 
wealths  in  time  of  peace  and  to  limit  their  hostilities  in  war. 
It  has  no  other  function  in  respect  of  hostilities,  but  to 
limit,  to  assuage,  to  rob  them  of  their  offences  of  cruelty 
and  military  force.  But  it  does  not  detract,  or  attempt  to 
detract,  one  atom  from  the  weight  and  momentum  of  their 
efficacy."  This  being,  then,  the  general  proposition  of  the 
right  of  a  nation  to  apply  its  means  and  resources,  appro 
priately  and  adequately,  against  persons,  against  territory 
and  against  trade,  the  next  general  proposition  is,  that  the 
prize  judicature  has  in  it  no  quality  of  mulct  or  penalty,  or 
of  punitive  or  retributive  justice,  but  attends  the  forcible 
capture  wholly  on  motives  and  for  purposes  of  confining  such 

17 


226         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

forcible  captures  pursued  on  the  high  seas  to  the  recognized 
and  allowed  obligations  of  such  forcible  captures  and  of 
protecting  all  other  property  and  interests  therefrom.  We 
claim  that  the  right  of  force  against  the  enemy's  trade  is  as 
much  within  the  competency  of  a  government,  exercising 
power  to  suppress  a  rebellion,  as  its  application  direct  against 
persons,  or  by  overrunning  territory.  And  we  claim  that 
it  is  a  pure  misconception  to  attribute  to  the  prize  jurisdic 
tion  that  quality  of  fine,  of  penalty,  of  punishment,  and  of 
retribution,  which  enters  into  judgment  on  the  conduct  of 
the  adverse  party  in  a  war. 

If  these  two  propositions  be  sound,  it  will  be  found  that 
all  that  is  urged  against  this  authority  of  the  Government 
against  trade,  and  this  particular  form  of  enforcing  its 
authority  in  the  trammels  of  the  laws  of  nations,  fail  en 
tirely  in  their  application  and  in  their  effect. 

Now,  the  propositions  on  the  other  side,  as  presented  and 
urged  with  such  various  form  and  with  so  much  effect  by 
the  learned  counsel  who  spoke  last  on  the  part  of  the  claim 
ants  in  this  case,  my  friend  Mr.  Lord,  are,  I  think,  to  be 
properly  presented  thus.  And  that  is  why  argument  will 
be  found  to  turn  upon,  and  constantly  recur  to,  one  or  the 
other  of  these  ideas,  for  its  entire  support.  He  claims  that 
the  situation  discloses  a  treasonous  war  against  the  Gov 
ernment,  which  is  a  personal  war,  and  not  a  territorial  war; 
that  the  Government  proceeds  only  against  personal  delin 
quents  and  not  on  any  attribution  of  hostility  to  residence 
or  incorporation  in  any  community  or  region  drawn  into 
hostilities.  And,  secondly,  that  this  special  character  of 
war,  whatever  direct  application  of  force  and  weight  of 
adverse  war  on  the  part  of  the  Government  it  may  support, 
draws  to  itself  none  of  the  judicial  inquisitions  and  sentences 
which  come  in  as  the  law  of  full  war.  And  he  attributes  to 
the  prize  jurisdiction  and  to  the  prize  sentence,  that  quality 
of  inquisition  into,  and  punishment  for  fault  or  guilt. 


THE  PRIZE  CASES  227 

The  propositions  of  our  learned  friends  from  Boston  who 
maintain  the  case  of  the  claimants,  as  drawn  from  the  oral 
arguments  and  from  the  printed  brief,  are,  it  seems  to  me, 
fairly  stated  thus:  I  quote  now  from  the  brief  itself: 

"Undoubtedly  the  Government  has  belligerent  rights 
against  its  rebellious  subjects,  but  they  are  confined  to  its 
subjects  actually  in  rebellion  and  cannot  be  exacted  by 
confiscation  so  as  to  create  forfeiture  of  the  goods  of  inhab 
itants  merely  of  territory  held  by  rebels,  without  some  posi 
tive  legal  enactment.  2d.  Judgment  in  a  Court  of  Prize 
must  follow  and  rest  upon  acts  and  declarations  of  the  Ex 
ecutive,  which  themselves  must  be  passed  upon  and  sup 
ported  by  Acts  of  Congress,  or  directly  upon  Acts  of  Con 
gress,  as  the  support  of  the  Judgment  of  the  Court." 

Then  it  is  claimed  that  the  action  of  the  Executive  under 
laws  for  the  suppression  of  the  rebellion  does  not  create  the 
status  of  war  followed  by  the  secondary  or  legal  conse 
quences, — as  it  is  called  throughout  the  controversy — of  the 
prize  jurisdiction. 

Then,  that  the  acts  of  Congress  subsequently  passed  are 
to  be  construed  as  declaratory  of  the  original  relations  of 
persons  and  property  to  the  Government — in  which  we,  of 
course,  cordially  agree.  And  they  insist  that  they  show — 
that  is,  these  later  acts  of  Congress — not  the  result  of  con 
fiscation  for  residence,  but  the  contrary — that  the  visitation 
of  law  is  wholly  on  those  in  rebellion  actively  and  who 
are  guilty  of  treason. 

"5th.  That  these  subsequent  Acts  of  Congress  give  con 
struction  to  the  proclamations  and  show  the  exact  status 
to  be,  that  loyal  citizens,  retaining  their  residence  within 
the  region  of  rebellion,  are  not  enemies  but  citizens,  entitled 
to  protection  and  not  to  confiscation." 

And  they  then  allege  as  a  general  conclusion,  and  on  ad 
judications  and  text  writers  that,  "no  case  can  be  shown  in  a 
civil  war  where  confiscation  has  been  made  from  mere  resi 
dence,  but  from  some  special  decree  of  Government." 


SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

Now,  if  the  Court  please,  however  novel  and  interesting 
these  primary  considerations  of  this  situation  and  its  con 
sequences  between  a  Government  and  rebellious  subjects 
may  have  been  when  the  first  prize  court  was  opened  and 
when  the  exercise  of  this  belligerent  authority  of  the  Gov 
ernment  of  the  United  States  made  its  first  captures,  it 
seems  to  us  that,  in  resolving  what  the  laws  of  nations  are 
and  what  the  rights  of  Governments  thrown  into  this  pre 
dicament  are,  under  the  public  law  of  the  world  and  toward 
the  nations  of  the  earth,  there  is  some  aid  to  the  argument  to 
be  found  in  the  fact  that,  inspecting  the  question  under  the 
strongest  interest  that  can  ever  influence  foreign  nations 
not  to  treat  this  as  a  war  or  allow  it  to  be  treated  as  a  war, 
every  maritime  power,  every  great  nation,  every  civilized 
community,  that  is  drawn  within  the  folds  of  commercial  or 
friendly  intercourse  with  this  country,  has  pronounced  it  a 
war  on  the  first  intelligent  examination  of  it  and  has  sur 
rendered  all  its  rights,  all  the  rights  of  its  subjects,  bowing  to 
the  overwhelming  fact  of  war  and  its  irresistible,  indisput 
able  law-making  power. 

Now,  supposing  it  stood  here;  supposing  it  stood  merely  on 
the  public  history  of  these  transactions,  as  it  is  to  be  collected 
from  the  political  action  of  the  civilized,  commercial,  mari 
time  nations  of  the  world,  supposing  that  in  the  final  winding 
up  of  these  transactions,  either  by  the  re-establishment  of 
the  authority  of  the  Government  and  the  suppression  of  the 
rebellion,  or  in  any  measure  or  degree  of  its — the  rebellion's — 
success,  the  history  is  closed,  and  is  to  form  an  example  for 
the  future,  as  an  exemplar  authority  in  international  law — 
who  shall  say  that  it  is  not  a  decree  pronounced  on  the  clear 
est  evidence  of  fact,  and  the  most  solemn  and  authoritative 
judgment,  that  this  is  war,  and  gives  international  rights  of 
war  toward  neutrals,  and  gives  authority  of  war  between 
the  opposing  forces  that  contend  on  the  one  side  and  the 
other  in  the  struggle  of  civilized  communities,  whose  forces 


THE  PRIZE  CASES  229 

are  the  whole  strength  and  resources  of  the  respective  popu 
lations,  the  whole  energy  and  power  of  their  respective  inter 
national,  commercial  relations? 

What,  if  the  Court  please,  is  this  system  of  the  law  of 
nations  that  adapts  itself  to,  and  controls  such  situations? 
It  is  "the  voluntary  law  of  nations."  Such  is  the  phrase  of 
the  books.  Such  is  the  nature  of  the  authority — for  there 
is  no  power  compelling  the  assent  or  action  of  nations.  It 
is  the  voluntary  law  of  nations.  It  is  under  the  voluntary 
law  of  nations  that  we  claim  to  exercise  the  right,  and  that 
neutrals  should  submit  to  it.  It  is  under  that  great  law  of 
nations  that,  if  at  all,  they  do  submit  to  it.  And  if  their 
present  voluntary  conduct  be  not  a  confirmation  and  support 
of  those  principles,  as  aforetime  existing  and  forming  a  part 
of  the  law  of  nations,  and  if  this  stood  as  a  new  and  original 
consent,  it  would  introduce  and  establish  a  part  of  the  vol 
untary  law  of  nations,  that  could  not  fail  to  be  respected  in 
the  future. 

So,  too,  when  we  come  with  great  respect  to  the  authority 
of  this  Court,  we  seem  to  find  some  support  to  the  argument, 
that  may  turn  the  balance  and  burden  on  the  claimants  here, 
in  the  fact  that  every  prize  court  in  the  nation  has  found  in 
the  law  of  nations,  has  found  in  the  situation  of  facts  which 
introduced  the  controlling  authority  of  the  law  of  nations, 
the  necessary,  the  invincible  requirement  to  sustain  the  prize 
judicature  as  within  the  competency  of  the  Government. 
Their  learned  opinions,  pronounced  independently,  reasoned 
on  their  own  vigor,  and  supported  by  as  comprehensive 
research  as  is  needed  for  the  elucidation  of  the  subject,  are, 
or  will  be,  all  before  your  Honors. 

In  the  third  proposition,  which  I  have  not  seen  success 
fully  contested,  that  no  authority  of  prize  law,  no  authority 
among  accredited  writers  on  the  law  of  nations,  has  ever 
pretended  to  say  that  a  situation,  arising  between  the  two 
parts  of  a  nation,  whether  it  divided  it  into  mere  factions,  or 


230        SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

whether  the  parental  government  maintained  its  authority 
and  fought  against  traitors,  cannot,  if  the  facts  brought 
it  to  that  head  and  necessity,  not  only  support,  but  compel, 
the  introduction  of  the  laws  of  war  in  all  their  force  and 
authority,  I  mean  to  say  that  the  enlightened,  advanced, 
humane,  principles  of  the  law  of  nations  will  not  permit  war 
to  exist  in  that  brute  and  violent  force,  without  the  impor 
tation  of  the  moderating,  controlling,  restrictive,  assuag 
ing,  influences  of  the  laws  of  war.     Even  those  foreign  au 
thorities  that  have  been  introduced,  and  in  part  transcribed 
on  the  briefs  of  our  learned  adversaries — the  most  favorable 
to  them  that  their  researches  could  furnish,  and  quite  re 
mote  from  the  usual  sources  of  international  law  to  which  we 
are  accustomed  to  apply  in  our  courts  or  in  the  courts  of 
England — contain  no  limitation  that  will  not  introduce, 
when  the  facts  pronounce  themselves  sufficiently,  the  ab 
solute  and  complete  authority  of  the  law  of  nations.     Thus, 
in  the  extract  from  the  civil  law,  most  relied  upon  in  the 
brief  in  the  Boston  case,  de  captivis,  it  is  said,  "In  civil  dis 
sensions,  although  often,  by  that  means,  the  commonwealth 
is  exposed  to  injury,  nevertheless  the  contest  does  not  touch 
the  safety,  or  threaten  the  destruction,  of  the  republic"; 
and,  in  such  cases,  the  rule  is  asserted  that  the  change  from 
freedom  into  slavery  is  not  accomplished  by  seizures  in  such 
a  war.     Without  discussing  or  presenting  what  is  apparent 
to  observation,  the  entire  difference  that  exists  on  this  mat 
ter  of  personal  freedom,  from  the  consequences  of  destruction 
of  the  power  and  strength  of  the  enemy  by  the  direct  ap 
plication  of  war  to  its  trade,  it  will  be  apparent  that  the 
whole  limitation  there  rests  on  the  fact  that  the  civil  dis 
sension  is  within  the  limit  of  effecting  injury — as  by  the  ex 
istence  of  strife  every  community  is  injured — but  has  in  it 
no  threat  of  destruction  to  the  public  constitution — the 
commonwealth  itself.     So,  too,  Hefter,  quoted  here,  says, 
"The  state  of  war  legally  exists  between  such  parties  only 


THE  PRIZE  CASES  231 

as  are  entitled  to  exercise  the  extreme  rights  of  self-defence, 
and  therefore  it  can  only  take  place  between  parties  entirely 
free  and  independent  of  each  other,  and  who  are  not  subject 
to  a  superior  jurisdiction  common  to  both.  Such  is  a  war 
between  sovereign  states,  or  against  individuals  belonging 
to  no  state — such,  for  instance,  as  freebooters,  filibusters, 
pirates  and  the  like.  An  internal  war  between  political 
factions  can,  at  best,  claim  legality  as  a  matter  of  necessity; 
and  it  can  never  give  rise  to  a  regular  state  of  war  such  as 
may  exist  between  states  foreign  to  each  other." 

Now,  this  writer,  theorizing  on  the  possible  situations  in 
human  affairs,  necessarily  concedes  that  legality  of  war  must 
come  in  by  necessity,  as  soon  as  the  necessity  arises.  We 
agree  that  the  legality  of  war  comes  in  upon  a  necessity, 
which  absolutely  overthrows  the  peaceful  authority  of  the 
Government,  closes  its  courts,  and  banishes  peace;  and  then, 
as  I  have  attempted  once  to  show,  there  is  but  one  of  two 
choices  open  to  the  state — one  to  yield  its  life  to  the  attack 
made  upon  it,  one  to  defend  itself  by  such  power  and  re 
sources  as  it  possesses. 

So  your  Honors  will  find  that  these  remote  theories  of  these 
writers  do  not  attempt  the  absurdity  of  saying  that  they 
will  control,  or  that  any  written  authority  of  law  has  con 
trolled,  or  can  control,  the  submission  of  all  things  human  to 
a  necessity  which  overpowers. 

Now,  the  topics  in  their  due  subordination  which  seem 
to  need  discussion,  I  humbly  suggest  to  the  Court  are  these: 

1st.  Of  the  powers  of  the  Government  in  the  suppression 
of  rebellion. 

2nd.  Of  the  department  of  the  Government  in  which 
these  powers  are  lodged. 

3rd.  Of  the  measure  and  sense  in  which  these  powers 
have  been  exercised. 

4th.  The  mode  and  form,  in  their  legal  nature  and  effect, 
in  which  the  property  now  in  judgment  became  involved  in 
their  grasp. 


232         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

And  then  the  lawfulness  of  the  captures  and  the  validity 
of  the  sentence  in  prize. 

This  brings  me,  if  the  Court  please,  to  the  consideration 
of  the  first  proposition  in  my  printed  brief,  page  22. 

"The  situation  in  which  these  vessels  and  cargoes  are 
found,  as  presented  to  the  Court  is,  that  they  were  seized 
at  the  dates  of  the  17th  and  20th  of  May,  about  the  20th 
of  June,  and  10th  of  July,  in  all  cases  by  public  armed  vessels 
of  the  United  States  Government,  brought  into  port,  de 
livered  to  the  prize  Judges,  libelled  in  prize  by  the  District 
Attorneys,  condemnation  demanded  in  the  name  of  the 
Government  as  prize  of  war,  adjudication  had,  sentence 
passed;  and  from  the  sentence  of  condemnation,  the  appeal 
has  been  taken." 

Now,  I  relieve  at  once  this  argument  from  what  has  formed 
so  large  a  part  of  the  effort,  with  zeal  and  great  ability 
pressed,  of  our  learned  opponents,  to  argue  that  this  Gov 
ernment  cannot,  in  the  situation  disclosed,  by  its  executive 
power,  either  legislate  into  existence  crimes,  and  apply  to 
them  penalties  and  confiscations,  or  try  a  case  of  personal 
fault  and  delinquency — that  it  cannot  subject  to  attainder, 
and,  by  consequence,  that  it  cannot  overthrow  the  rights  of 
property  by  a  blow,  and  that  these  sentences  and  these  pro 
cedures  cannot  be  defended  on  any  such  principle  or  sup 
port.  For  we  agree  that  there  is  not  the  least  quality  of 
municipal  or  statutory  offence  in  the  conduct  of  these  ves 
sels  or  of  their  cargoes,  nor  of  municipal  or  statutory  for 
feiture  in  the  procedure  for  their  condemnation. 

We  do  not  oblige  our  learned  friends  to  argue  that  such 
things  cannot  be  done,  for  we  admit  that  they  have  not  been 
done  and  have  not  been  attempted  in  these  procedures. 
Whether  indictment,  trial,  conviction  and  sentence,  with 
this  or  that  result  of  personal  punishment  or  fine,  can  be 
based  on  anything,  on  any  new  relations  that  have  arisen 
in  consequence  of  the  war,  wherever  it  may  be  debatable, 


THE  PRIZE  CASES  233 

is  not  debatable  here;  for  the  Government  has  taken  no 
such  proceeding,  and  asserts  no  such  right  in  these  causes. 
Nor  have  their  condemnations  proceeded  at  all  as  an  inci 
dent  or  as  a  consequence  of  any  inquisition  into  the  personal 
guilt  of  any  of  the  owners  of  the  condemned  property,  as 
being  traitors  or  rebels,  or  aiders  or  abettors  of  treason  or 
rebellion.  We  say  openly  and  distinctly  that,  as  an  admin 
istration  or  execution  of  law  under  the  peaceful  authority 
of  the  Government,  the  whole  transaction,  from  capture  to 
sentence,  is  without  any  support.  It  is  only  in  and  from  a 
state  of  war,  having  its  own  laws,  tribunals,  processes  and 
sanctions,  that  the  offence,  the  arrest,  the  Court,  the  trial, 
and  the  sentence,  have  their  origin  and  legal  validity. 
And  if  the  status  fails,  the  captures  were,  undoubtedly, 
open  and  violent  piratical  aggressions  on  peaceful  commerce, 
the  prize  jurisdiction  is  imaginary,  and  the  sentence  in 
effectual  to  pass  property  in  the  vessel  which  may  be  sold 
under  it. 

And  now,  if  the  Court  please,  having  cleared  ourselves  of 
the  least  necessity  of  maintaining  or  defending  those  powers 
of  confiscation  and  of  punishment  by  mere  authority  of  the 
President,  or  of  attaining  statutes  or  procedures  that  would 
justify  them,  I  proceed  to  submit  to  your  Honors  what  I  sup 
pose  to  be  the  whole  subject  of  jurisdiction  and  determina 
tion  in  a  prize  court.  I  say  that,  as  a  matter  of  its  own 
jurisprudence,  and  its  own  determination,  there  is  but  one 
question  before  a  prize  court — and  that  is,  prize  or  no  prize 
— that  the  existence  of  the  jurisdiction,  the  openness  of  the 
Court,  rests  on  the  postulate  that  there  is  war.  Now,  wheth 
er  there  be  war  or  not  is,  I  agree,  a  question  to  be  determined 
on  principles  furnished  by  the  law  of  nations  under  which  the 
prize  court  sits. 

The  mere  fact  that  a  vessel  is  brought  into  port  and  a  libel 
filed  by  the  District  Attorney  does  not  oblige  the  prize  court 
to  open  itself  to  the  hearing  and  administer  the  law  of  prize 


234         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

or  no  prize.  But  although  the  determination  whether  the 
preliminary  postulate  of  war  exists  to  raise  the  prize  juris 
diction,  is  solely  and  wholly  by  the  recourse  of  the  prize 
court  to  the  action  and  voice  of  the  political  powers  of  the 
Government  under  which  it  sits,  it  never  was  heard  of  that 
a  prize  court  can  erect  itself  into  a  jurisdiction  to  recapture 
a  vessel  that  its  sovereign  had  seized  in  the  right  of  war. 
Never, — but  to  learn,  under  the  Commission  with  which  the 
sovereign  had  entrusted  it,  whether  it  was  such  a  capture  as 
the  sovereign  intended  to  make.  It  never  was  allowed  to 
say  that  there  was  no  war,  when  the  sovereign  said  that 
there  was.  It  never  was  allowed  to  say  that  a  seizure  was 
not  made  in  the  intent  and  under  the  assumed  authority  of 
being  by  the  law  of  war,  when  the  sovereign  said  that  it  was. 
The  moment  that  any  such  pretence  or  assertion  of  authority 
is  submitted  to,  it  is  made  not  a  court  under  the  Govern 
ment,  but  a  court  over  the  Government.  It  is  determining 
whether  a  war  exists  which  the  sovereign  has  declared  to 
exist,  and  is  determining  whether  the  sovereign,  in  a  cap 
ture  unmistakably  forcible,  shall  hold  his  prize,  or  whether 
the  court  shall  recapture  it,  and  deliver  it  to  the  hostile  or 
adverse  party. 

Now,  if  the  Court  please,  this  proposition  does  not  in  the 
least  interfere  with  what  we  recognize  as  the  familiar  and 
necessary  jurisdiction  of  the  prize  court.  The  object  of  the 
prize  court  is  not  to  give  to  the  sovereign  a  right  to  capture. 
The  sovereign  asserts  his  right  to  capture.  How  does  he 
declare  his  right  to  capture?  If  he  has  declared  a  war,  or  if 
he  is  engaged  in  a  war,  he  asserts  his  right  to  capture  all 
property  that,  according  to  the  laws  of  war,  is  affected  with 
the  quality  of  enemy  property,  by  its  being  really  in  the 
ownership  of  the  hostile  party,  or  by  such  conduct,  breach 
of  blockade,  or  cargo  contraband,  as  exposes  neutral  prop 
erty  to  the  same  consequences  which  hang  over  enemy 
property. 


THE  PRIZE  CASES  235 

When,  therefore,  the  sovereign  brings  in  his  prize,  it  is  a 
concession  to  that  principle  of  the  law  of  nations,  demanded, 
to  be  sure,  and  insisted  upon  by  neutral  nations  as  the  condi 
tion  of  their  assent  to  the  exercise  of  belligerent  rights  at 
all,  on  the  open  sea,  and  on  indiscriminate  commerce, — that 
the  sovereign  is  to  bring  in  the  property  captured  and  not 
destroy  it.  It  is  that  it  shall  be  brought  in  and  submitted  to 
judicial  investigation  whether  it,  the  very  res  before  the 
court,  comes  within  the  right  of  the  Government  prosecuting 
the  war  under  the  laws  of  war.  The  sovereign  cannot  seize 
friends'  property.  All  neutral  property  must  submit  to 
search,  visitation,  and  to  arrest.  It  cannot  resist  arrest. 
But  when  the  inquisition  is  open,  then  the  inquiry  is,  does 
this  very  thing,  the  res  before  the  court,  fall  within  the  predic 
ament  whereby  the  sovereign  of  the  court,  prosecuting  the 
law  of  war,  may  rightfully  seize,  under  the  law  of  nations. 
But,  supposing  that  the  sovereign  has  asserted  a  principle 
of  capture  under  the  law  of  nations,  and  has  put  it  in  execu 
tion,  what  is  the  duty  and  what  the  situation  of  the  prize 
court?  Why,  manifestly,  the  duty  of  the  prize  court  is  to 
say  and  to  see,  "the  sovereign  has  assumed  the  responsi 
bility  of  this  principle  of  maritime  capture  as  being  within 
the  authority  of  the  law  of  nations,  and  which  he  insists 
upon.  His  prize  court  has  no  commission  to  thwart  that 
purpose  or  overrule  that  confiscation.  The  sovereign,  if 
in  fact  he  has  departed  from,  gone  beyond,  the  rights  of  the 
law  of  nations,  is  responsible  in  his  political  capacity  to  the 
states  whose  subjects  have  suffered  injury  for  those  offences." 
But  if  you  will  introduce  into  the  jurisdiction  of  a  prize  court 
this  faculty  of  setting  free  what  the  sovereign  has  announced, 
as  his  purpose  and  his  construction  of  right  under  the  law  of 
nations,  to  seize,  you  at  once  turn  this  jurisdiction  from  its 
pure  and  simple  function — of  examining  into  the  circum 
stances  of  the  seizure,  to  see  whether  it  is  within  the  asserted 
right  of  the  sovereign — into  a  power  over  the  sovereign,  into 


236         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

an  ally  of  the  enemy,  into  an  aid  against  the  public  and  united 
authority  of  the  nation. 

Now,  if  the  Court  please,  when  we  have  sought  in  our 
judicature  on  this  question,  as  applicable  to  the  situation  in 
which  the  controversy  was  between  foreign  parties  and  we 
were  a  neutral,  it  is  familiar  lore  that  the  question  of  war  or 
no  war,  as  the  preliminary  postulate  to  the  question  of  prize 
or  no  prize,  was  referred  by  our  courts  to  our  own  Govern 
ment  in  its  political  capacity.  The  political  power  of  this 
Government,  when  it  settles  political  questions,  settles 
them  under  responsibility,  settles  them  under  reasons  of 
state,  settles  them  under  reasons  of  public  policy,  influenced 
by  a  thousand  considerations  which  never  can  come  before 
a  court  of  justice;  and  the  courts  of  the  nation  have  never 
spoken  a  different  voice  from  their  Government  on  the  ques 
tion  of  war  or  no  war,  whether  they  are  applying  this  judg 
ment  to  a  situation,  as  in  the  Spanish-American  cases,  where 
the  conflict  is  between  parts  of  another  nation,  or  to  a  public 
war,  or  to  a  private  war,  or  to  a  civil  war.  A  seizure  made 
by  a  Government  may  be  brought  into  a  court  of  prize 
and  yet  the  prize  court  reject  the  jurisdiction.  What  does 
it  look  at  ?  Is  the  seizure  made  by  the  authority  of 
the  Government?  Yes.  Is  it  made  jure  belli?  If  it  is 
made  jure  belli  by  the  sovereign,  then  we  examine  to  see 
whether  he  has  a  right,  under  the  law  of  nations,  as  the 
court  interprets  it,  or  whether  he  has  asserted  a  right  on  his 
own  construction  of  the  law  of  nations,  to  make  the  capture. 
But  if  the  sovereign  has  not  made  it  jure  belli,  although  he 
has  made  it  in  fact,  if  he  has  made  it  as  a  part  of  a  system  of 
peace  embargo,  of  arrest  as  matter  of  precaution,  and  pre 
liminary,  then  it  is  not  an  arrest  jure  belli,  and  as  the  prize 
court  has  not  the  least  jurisdiction  over  anything  not  done 
jure  belli,  it  remits  it  to  its  jurisdiction  and  leaves  it  under 
the  civil  constraint  to  which  it  was  decided  to  belong. 

Such  are  the  decisions  in  the  cases  to  which  I  have  re- 


THE  PRIZE  CASES  237 

ferred,  but  most  distinctly  and  emphatically  when  an  arrest 
is  made  at  the  outset,  or  in  advance  of  open  and  publicly 
declared,  or  fully  established  hostilities  that  come  up  to  the 
state  of  war.  When  this  arrest  was  made,  the  undetermined 
and  unsettled  state  of  things  would  have  made  it  unsuitable, 
premature,  to  declare  such  an  arrest  as  being  jure  belli', 
for  the  fact  of  the  political  recognition  by  the  Government  of 
war,  would  not  have  been  made  apparent.  The  arrest, 
however,  is  made.  And  subsequently  those  sparks  of  col 
lision  have  lit  up,  between  the  two  powers,  the  flames  of  war. 
Then  this  previous  arrest  is  made  the  basis  of  a  libel  as  prize 
of  war.  And  then  the  court,  looking  back  through  the 
light  of  subsequently  developed  facts  which  produce  an  open 
war,  says  that  the  arrest  was  jure  belli,  in  that  preliminary 
assertion,  not  of  municipal  right,  not  of  peace  embargo,  but 
as  of  the  outset  and  initiation  of  war;  and  then  the  condem 
nation  proceeds  as  prize  of  war,  jure  belli,  applying  the  po 
litical  construction  and  conduct  of  the  Government,  after 
wards  appearing  efficacious,  to  the  facts  as  in  the  time  of  the 
seizure. 

Now,  what  is  the  first  argument  and  what  the  first  test 
on  which  a  prize  court  would  be  asked  to  say  that  a  seizure, 
brought  in  for  its  adjudication,  was  not,  in  intent  and  in 
truth,  a  capture  jure  belli?  If  it  was  brought  in  by  a  public 
armed  ship  of  the  United  States  from  the  open  seas,  it  would, 
on  the  face  of  it,  seem  to  be  an  act  of  war,  and  not  a  municipal 
or  peaceful  arrest — not  to  have  anything  of  exchequer  in  it, 
or  confiscation,  but  prize  of  war.  If,  in  addition  to  that,  no 
advocate,  no  argument,  could  present  an  alternative  power, 
of  peace  and  of  municipal  authority,  under  which  the  arrest 
could,  by  possibility,  have  been  made,  the  court  would  say 
that  that  arrest — there  being  no  possible  support,  no  pos 
sible  authority  of  municipal  jurisdiction  under  any  existing 
law,  or  municipal  procedure  under  any  existing  law  whereby 
the  arrest  had  been  made — if  it  were  proved  to  have  been 


238        SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

made  by  the  sovereign  authority,  and  was  not  a  marine  tort, 
not  a  private  injury,  not  a  marauder's  spoliation,  must  have 
been  made  by  the  sovereign,  jure  belli.  I  submit,  then,  to 
your  Honors  that  the  prize  jurisdiction,  in  its  original  sen 
tence  and  at  this  stage,  is  limited  to  the  inquiry  whether  it 
be  prize  or  no  prize  under  the  rules  of  war  on  a  capture 
jure  belli.  And  on  the  question  whether  the  capture  was 
made  by  the  United  States  of  America,  jure  belli,  you  are 
only  to  look  to  see  whether  the  political  authorities  of  the 
Government  made  it  peacefully  or  jure  belli.  If  peacefully, 
your  jurisdiction  is  gone,  and  you  surrender  it  to  the  peace 
ful  jurisdiction  of  whatever  court  may  have  jurisdiction  of  it. 
But  if  you  find  that  the  United  States  of  America  asserted 
the  jus  belli  and,  in  the  execution  of  it,  made  these  captures, 
you  never  can  overthrow  the  political  authority  of  the  Gov 
ernment,  and  surrender  to  the  enemy  what  your  Govern 
ment  has  chosen  to  seize. 

If,  then,  the  prize  court  is  right  in  its  determination  below 
that  the  capture  was  made  jure  belli,  was  it  lawfully  made 
jure  belli  is  the  question  of  prize  or  no  prize.  And  that 
brings  me,  if  your  Honors  please,  to  the  consideration  of 
one  of  the  particular  circumstances  in  the  Crenshaw's 
case.  This  will  be  found  stated  at  page  13,  and  the  subse 
quent  parts  of  my  brief. 

Now,  what  are  the  principles  and  usages  of  the  law  of 
nations  applicable  to  a  state  of  war  and  to  the  assertion  of 
jus  belli  which  subject  to  sentence  vessels  brought  in  as 
prize?  Halleck,  in  his  book,  page  472,  referred  to  on  my 
points,  has  very  succinctly  and  very  truly  stated  the  exist 
ing  and  established  law  of  nations  to  be  that  when  two 
powers  are  at  war,  they  have  a  right  to  make  prize  of  the 
ships,  goods  and  effects  of  each  other  on  the  high  seas,  and 
that  that  right  of  capture  includes  not  only  Government 
property  but  also  the  private  property  of  all  citizens  and 
subjects  of  the  belligerent  powers.  That  is  the  asserted 


THE  PRIZE  CASES  239 

right,  the  jus  belli.  If  I  am  right,  then  we  have  only  to 
consider,  in  the  argument,  whether  this  property  comes 
within  that  predicament.  Now,  there  are  various  claimants 
here,  and  there  are  special  circumstances  distinguishing  the 
predicament  of  the  particular  items  of  property  for  which 
they  press  their  claims.  My  learned  friend,  Mr.  Lord,  has 
stated  what  is  presented  in  my  second  point,  that  the  to 
bacco  shipped  by  I.  and  I.  H.  Caskie  presents  no  question  of 
difficulty  within  the  scope  of  the  general  inquiry  of  prize  or 
no  prize.  It  is  the  property  of  Richmond  merchants,  es 
tablished  in  trade  there,  and  constituting  a  part  of  the 
people,  and  their  trade  a  part  of  the  trade,  of  the  hostile 
region  of  the  rebellion.  If  the  law  of  prize  is  applicable,  if 
the  jus  belli  has  been  asserted  by  our  Government  and  the 
capture  made,  your  Honors  will  find  no  difficulty  in  con 
firming  this  capture  by  the  law  of  nations,  in  the  sense  that 
it  was  what  the  sovereignty  intended  to  capture.  In  re 
gard  to  the  invoice  of  Richard  Irvin  &  Co.,  there  are  two 
views  that  may  be  taken  of  it — first,  whether  this  invoice 
was  wholly  the  property  of  Richmond  merchants,  or  whether 
it  was  held  in  moiety,  in  part  ownership  or  partnership,  by 
the  Richmond  merchants  and  by  Richard  Irvin  &  Co.,  the 
New  York  merchants.  The  statement  is  wholly  contained 
in  the  answer,  which  is  supposed  to  be  separated  as  a  test 
question  of  property,  and  presents  a  case  somewhat  of  this 
kind:  Richard  Irvin  &  Co.  having  this  firm  of  Clarke  & 
Co.,  resident  merchants  of  Richmond  as  joint  adventurers 
with  them  in  a  business  consisting  of  the  purchase  of  tobacco 
in  Richmond,  and  its  consignment  to  Liverpool,  to  a  house 
there  representing  Richard  Irvin  &  Co.,  or  being  their  cor 
respondents  for  sale,  were  in  the  habit  of  supplying  money 
by  which  the  purchases  were  effected  in  Richmond,  and  hav 
ing  the  property  consigned  to  their  correspondents — the  re 
sults  of  the  sales,  the  proceeds  of  the  adventures  being  equally 
divided  in  matter  of  profit  between  the  Richmond  and  New 


240         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

York  firms — Irvin  &  Co.  of  course  receiving  back  the  amount 
of  their  advances,  and  that  which  stood  for  profit  being 
equally  shared.  It  does  not  appear  at  all,  in  any  affirmative 
and  definite  form,  as  I  respectfully  submit  (my  learned 
friends  will  correct  me  if  I  am  in  error)  that  the  matter  of 
reclamation,  in  case  of  loss,  was  otherwise  than  the  ordinary 
commercial  relations  of  such  transactions — to  wit,  that  Ir 
vin  &  Co.,  in  case  the  proceeds  of  the  tobacco  failed  to  re 
imburse  their  advances,  would  have  their  reclamation 
against  the  Richmond  purchasers  who  had  been  supplied 
with  their  funds.  If  that  were  so,  then,  in  the  contempla 
tion  of  a  prize  court,  this  tobacco  was  the  property  of  the 
Richmond  merchants,  and  Irvin  &  Co.  were  mere  advancers 
having  the  lien  of  consignees  on  the  property. 

But,  if  the  other  view  be  taken,  that  they  were  joint  owners 
of  the  property — for  there  is  nothing,  it  seems  to  me,  to  in 
dicate  any  deposition  of  exclusive  ownership  on  the  part  of 
Richard  Irvin  &  Co., — then  the  shares  would  be  determin- 
able  in  this  way:  The  shares  of  the  Richmond  merchants 
would  present  the  clean  case  of  enemy  property,  following 
the  fate  of  Caskie,  and  the  shares  of  Richard  Irvin  &  Co. 
would  fall  within  the  predicament  of  property  of  our  own 
citizens,  loyal  and  resident  in  a  loyal  part  of  the  country, 
but  found  implicated  in  the  trade  of  the  enemy,  and,  as  we 
say,  good  prize,  by  the  law  of  prize,  as  being  thus  impli 
cated.  And  the  condemnation  proceeded  on  those  grounds. 

Now,  my  learned  friend,  in  his  argument,  laid  down  a 
proposition  that  a  distinction  was  to  be  taken  in  condemna 
tion  of  property  of  our  own  citizens  involved  in  trade  with  a 
recognized  enemy,  whether  the  property  had  been  purchased 
by  our  citizens  before  the  war  broke  out  or  not.  I  ask  your 
Honors  to  do  me  the  favor  to  take  a  citation  under  the  3rd 
Point,  on  the  16th  page  of  my  brief.  It  is  the  case  of  the 
St.  Lawrence,  1st  Gallison,  470.  "Property  purchased 
before  the  war  equally  excluded  from  trade,  and  equally 


THE  PRIZE  CASES  241 

open  to  condemnation  as  if  it  had  been  purchased  after 
wards." 

These  questions  are,  of  course,  important  and  interesting 
just  so  far  as  the  amount  of  property  involved  and  the  rights 
of  private  parties  are  concerned;  and  under  the  authorities 
to  which  your  Honors  have  been  referred  by  my  learned 
friends,  and  the  references  which  I  have  made,  it  is  but  a 
question  of  the  ordinary  prize  jurisprudence  to  determine 
whether  the  predicament  in  which  the  share  or  interest  of 
Irvin  &  Co.,  if  they  had  any  share  or  interest,  is  found  the 
subject  of  a  condemnation. 

There  is  another  claim  here,  which  is  represented  by  our 
friend  Mr.  Edwards — the  case  of  Ludlam  &  Watson,  who 
had  some  interest,  joined  with  Lear  &  Son  in  that  parcel  or 
invoice  on  board  ship.  Lear  &  Son's  interest,  whatever  it 
was,  was  acquitted,  but  they  have  appealed  because  it  was 
acquitted  with  a  charge  of  costs  upon  them  if  they  did  not 
make  further  proof.  That  is  to  say,  they  were  allowed  to 
make  further  proof.  If  they  accepted  that  favor  of  the 
Court  and  made  their  case  clear,  the  adjudication  would 
have  been  with  costs  or  without  costs,  according  to  the 
merits  of  the  controversy  thus  made  clear.  The  Court 
said,  "I  do  not  acquit  you  on  the  evidence.  If  you  make  it 
plain  that  you  are  entitled  to  restitution,  why,  of  course,  the 
costs  go,  but  if  you  rest  here  without  undertaking  to  make  it 
plainer,  I  say  that  costs  shall  be  charged  against  you  be 
cause  of  the  obscurity  and  uncertain  situation  of  the  prop 
erty."  Now,  that  was  in  the  discretion  of  the  prize  court, 
and  so  far  as  Lear  &  Son  are  concerned,  the  appeal  is  only 
on  that  question  of  costs.  They  did  not  take  the  alternative 
of  making  their  case  clear  by  further  proof,  and  they  appeal 
from  the  sentence  on  that  question  of  costs.  I  submit  that 
this  appeal  cannot  be  sustained. 

Ludlam  &  Watson  have  an  interest  in  the  same  invoice  of 
tobacco,  which  is  of  very  moderate  amount;  and  their  re- 
is 


SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

lations  are  of  this  kind :  Ludlam  &  Watson  were  a  Richmond 
firm  of  merchants.  Watson  was  a  citizen  of  Virginia  and  a 
resident  there,  in  the  rebellious  region.  Ludlam,  the  partner 
of  the  commercial  house  domiciliated  at  Richmond  was  a 
resident  of  Rhode  Island,  thus  living  in  a  loyal  State. 
The  shares  of  partners  being,  on  the  later  decisions,  to  be 
discriminated  on  a  question  of  condemnation,  Ludlam  & 
Watson  stand,  for  aught  I  see,  in  regard  to  this  parcel,  in  the 
same  relative  position  as  Irvin  &  Co.  and  Clarke  &  Co.  do  to 
the  present  parcel  in  which  they  are  interested,  provided 
they  are  joint  adventurers,  and  the  whole  property  is  not  in 
Clarke  &  Co. 

I  believe,  if  the  Court  please,  that  this  is  all  I  need  to  say 
specially  on  the  circumstances  of  this  case. 

If  I  be  correct  in  the  limit  of  the  duty,  the  jurisdiction, 
and  the  jurisprudence  of  the  prize  court,  the  considerations, 
other  than  those  that  I  have  stated,  would  be  limited  to 
an  inquiry  as  to  whether  the  political  authorities  of  this 
Government  had  indicated  in  such  a  manner  as  that  the 
prize  court  must  obey  those  indications,  that  this  was  not 
a  municipal  seizure  but  was  an  assertion  of  the  jus  belli. 
As,  however,  the  assent  of  the  Court  to  that  proposition  is 
not  to  be  assumed,  I  am  obliged  to  consider  the  more  general 
propositions  that  this  Government,  under  the  law  of  nations, 
and  in  the  situation  in  which  it  was  placed,  had  a  right  to 
have  recourse  to  the  jus  belli,  as  well  as  that  it  did,  in  fact, 
have  such  recourse.  And  as  the  separate  treatment  of  these 
two  questions — whether  the  Government  did,  in  fact,  have 
such  recourse,  and  whether  it  had  a  right  to  have  such  re 
course — requires  an  attention,  in  great  part,  to  the  same  pub 
lic  facts  and  the  same  public  documents  and  laws  I  shall  not 
attempt  to  separate  them  otherwise  than  in  this  statement. 

Now  I  have  stated,  sufficiently  for  all  the  purposes  of  my 
second  proposition,  the  situation  of  this  rebellion  toward  the 
Government  of  the  United  States.  The  Civil  War  had  al- 


THE  PRIZE  CASES  243 

ready  carried  into  complete  revolt  whole  states,  had  organ 
ized  the  form  of  a  separate  and  independent  government 
which  was  conducting  open  military  hostilities,  with  all 
the  outward  circumstances  of  public  war.  I  shall  not  need, 
in  my  argument,  to  rely  at  all  on  the  civil,  political,  govern 
mental  transactions  of  the  rebellious  population  in  the  re 
bellious  region,  in  any  other  sense  or  for  any  other  purpose 
than  to  show  the  dimensions,  the  proportions,  the  connections 
of  the  war-making  power  against  the  United  States.  To  the 
argument  of  our  learned  friends  that  there  is  not  the  least 
touch  or  quality  of  legality  under  the  Constitution  of  the 
United  States  in  what  they  have  done,  we,  of  course,  accede 
as,  on  the  primary  reason  of  all  things,  must  appear.  But 
they  have  a  power  that  is  engaged  in  war,  and  besides  its 
array  in  arms,  it  has  the  combination  of  policy  and  council; 
for,  as  Grotius  says,  "war  has  its  concilium  as  well  as  its 
praelium."  And  this  organization,  whatever  you  call  it, 
is  of  the  whole  people  of  the  whole  region,  of  all  its  connec 
tions  ad  exteros,  of  all  its  communications  of  civilized  society 
within  itself,  making  up — for  the  purposes  of  this  argument 
as  for  the  purpose  of  various  of  these  citations — an  ag 
gregated  power.  Well,  the  national  Government  met  this 
war  with  its  whole  military  power,  land  and  naval,  to  defend 
itself  from  overthrow,  to  preserve  the  integrity  of  its  do 
main  and  to  reduce  their  power  of  war. 

Vattel  says  that  "war  is  the  state  in  which  a  nation  pros 
ecutes  its  right  by  force."  The  essential  idea  of  war,  not  in 
any  fancy  or  far-fetched  analogy,  but  in  the  very  nature  of 
its  destruction  of  peace  and  order,  is  common  to  nations 
and  common  to  individuals.  It  is  the  predominance,  while 
it  lasts,  of  force  and  of  nothing  but  force;  and  the  only  laws 
that  are  imported  into  it  are  the  laws  that  regulate  or  limit 
its  force.  Now,  Grotius  says  very  distinctly  on  this  question 
of  war  that  "there  are  but  two  things  to  be  considered  by 
those  who  are  about  to  treat  of  the  rights  or  the  laws  of  war. 


244         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

First,  it  must  be  seen  what  the  war  is,  which  forms  the  sub 
ject  of  the  inquiry;  second,  what  the  law  or  right  to  the  jus 
of  war  is,  which  is  the  object  of  the  inquiry.  Cicero  has 
said  that  war  is  a  contest  by  force,  bellum  decertandi  per  vim; 
but  the  use  has  obtained  that  not  the  action  of  war,  but  the 
status,  should  be  called  by  the  name  of  war."  So  that  war 
is  the  state  of  things  continuing  by  force — belli  status  per 
vim.  There  is  not  a  touch  of  law  about  it.  It  is  a  pure 
question  of  fact,  when  two  independent  authorities,  who  can 
be  made  so  by  the  action  of  war  or  by  the  action  of  hostile 
force  on  one  side  and  the  other,  have  a  status,  and  distinc 
tion  from  a  simple  battle,  then  they  are  considered  in  war. 

"These  generalities,"  Grotius  proceeds,  "include  all 
kinds  of  war,  concerning  which  hereafter  we  shall  treat;  nor 
indeed  do  I  here  exclude  private  war,  as  because  in  itself  it 
is  prior  to  public  war,  and  without  doubt  has  a  common 
nature  with  public  war,  which  on  that  account  leads  to  the 
application  of  the  same  term  of  war  to  both." 

He  says  again,  in  his  third  chapter,  "The  first  and  most 
necessary  division  of  war  is,  that  one  war  is  private,  another 
public  and  another  mixed.  Public  war  is  that  which  is 
waged  under  the  authority  of  one  who  has  jurisdiction; 
private,  that  which  is  waged  otherwise;  mixed,  that  which 
on  one  side  is  public  and  on  the  other  private." 

This  applies  to  the  situation  in  which  this  country  is 
found,  the  definitive  description  of  mixed  war,  waged  on  one 
side  by  the  party  having  supreme  authority  or  sovereignty, 
and  on  the  other  side  by  private  persons — for  I  do  not  at 
tempt,  as  I  certainly  do  not  find  it  in  the  least  necessary,  to 
impute  any  other  authority  to  this  immense  combination  of 
rebel  citizens  of  the  United  States  than  such  as  is  produced 
by  the  tie  of  the  common  policy  and  common  force  as  used 
in  war. 

Then,  of  the  lawfulness  of  private  war  he  treats  on  the 
ground  that,  by  the  law  of  nature,  in  self-defence  it  is  cer 
tainly  admissible.  Now,  let  us  see  what  public  war  is. 


THE  PRIZE  CASES  245 

"Public  war  is  of  two  kinds,  that  which  is  solemn  under  the 
law  of  nations,  and  that  which  is  unsolemn,  or  less  solemn. 
That  war  shall  be  solemn  public  war  by  the  law  of  nations, 
two  things  are  required ;  first,  that  it  shall  be  waged  on  each 
side  by  public  authorities  which  have  the  supreme  power  in 
the  State,  and,  second,  that  all  the  rites  and  ceremonies  of  its 
declaration  shall  be  present — of  which  we  shall  treat. 
These  two  things  together  are  required  to  make  a  solemn 
public  war,  so  that  one  without  the  other,  is  not  sufficient." 
No  solemn  public  war,  within  this  definition  of  Grotius, 
could  exist,  however  powerful  and  independent  the  respective 
belligerents  were  as  sovereigns,  if  it  had  lacked  the  forms  of 
ceremonious  declaration.  "But  less  solemn  war"  he  con 
tinues,  "or  unsolemn  war  can  exist,  and  be  without  these 
rites,  and  be  waged  against  private  persons,  and  have  for 
its  authority  any  magistrate." 

So  that  the  distinction  which  our  learned  friends  have 
been  so  much  disposed  to  insist  upon,  that  public  war,  which 
brought  the  consequences  and  the  secondary  laws,  as  they 
call  them,  of  war,  cannot  be  attributed  to  the  situation  in 
which  this  nation  is  found,  has  certainly  no  support  in  the 
more  authentic  repositories  of  the  rules  and  distinctions  on 
this  subject. 

Grotius  then  in  his  4th  chapter  says — and  I  ask  your 
Honors'  attention  to  it,  as  it  forms  a  staple  part  of  the  argu 
ment  of  the  rights  of  a  nation  in  self-defence : 

"Wars  can  be  waged  both  by  private  persons  against 
private  persons,  as  by  the  traveller  against  the  robber,  and 
by  those  having  the  supreme  authority  against  those  who 
also  have  supreme  authority,  as  by  David  against  the  King 
of  the  Ammonites,  and  by  private  persons  against  those  who 
have  the  supreme  authority,  but  not  over  them"  (that  is, 
by  private  persons  not  against  the  parent  government,  but 
by  private  persons  against  a  foreign  government),  "as  by 
Abraham  against  the  King  of  Babylon  and  his  neighbors, 


246         SPEECHES  OP  WILLIAM  MAXWELL  EVARTS 

and  by  those  who  have  the  supreme  authority,  against  pri 
vate  persons,  other  than  subjects,  as  by  David  against  the 
adherents  of  Ish-bosheth;  or  not  their  subjects,  as  by  the 
Romans  against  the  pirates." 

Now,  we  may  talk  about  war  as  much  as  we  please,  and 
about  what  the  conditions  are,  on  which  a  war  is  perfect, 
imperfect,  solemn  or  unsolemn,  and  about  the  distinction 
between  war  inter  gentes,  and  war  by  the  sovereign 
authority  against  rebellion,  and  war  between  private  parties, 
and  against  pirates,  there  is  one  thing  which  is  common  to 
them  all,  there  is  one  thing  which  makes  a  discrimination 
between  war  and  peace — and  that  is,  its  force.  And  from 
the  instance  of  the  traveller  against  the  robber,  up  to  the 
mightiest  powers  that  have  divided  the  earth's  surface 
between  them,  it  is  war  as  and  when  it  is  force,  and  in  so  far 
as  it  is  force.  But  when  the  subject  comes  up  to  be  dealt 
with  in  the  law  of  nations  and  before  its  tribunals  it  must 
have,  not  the  mere  quality  of  force,  but  it  must  have  the 
supersession  of  all  peaceful  authority  and  control,  and  must 
occupy,  in  its  dimensions  and  proportions,  in  its  means  and 
methods,  in  its  armaments  and  forces,  the  character  of  war, 
as  distinguished  from  private  strife.  And  there  is  no  other 
distinction  than  that.  You  may  find  difficulty  in  drawing  it, 
although,  I  think,  in  the  world's  affairs  nothing  has  been  cer 
tain  if  it  has  not  been  certain  when  there  has  been  war  and 
when  there  has  been  peace.  Theoretically  you  must  sug 
gest  differences,  but  there  is  no  other  rule  of  discrimination 
except  the  inspection  of  the  facts  themselves.  When  the 
peaceful  authority  of  a  government  is  overthrown  there  may 
be  submission  on  the  part  of  the  public  authority,  or  there 
may  be  a  contest  for  its  recovery,  or  a  contest  for  the  legit 
imacy  of  its  overthrow.  And  that  is  the  situation  of  our 
affairs,  for  the  peaceful  authority  of  this  Government  was 
overthrown  in  fact  on  every  road  of  the  rebel  territory  and 
in  respect  of  every  resident  within  it.  The  rebel  contest, 


THE  PRIZE  CASES  247 

therefore,  was  to  legitimatize  that  overthrow  and  to  obtain 
a  sovereignty  that  had  peaceful  authority  there.  That 
would  have  brought  peace.  The  contest  on  our  part  is  to 
suppress  the  rebellion  and  restore  the  legitimate  authority 
of  the  parent  Government  over  the  rebellious  region,  as  to 
its  territory,  over  the  rebellious  citizens,  over  all  the  citi 
zens — for  it  is  equally  driven  out  from  rebels  and  from  loyal 
men — and  that  contest  is  not  under  municipal  law,  nor  in  the 
nature  of  things  can  it  be.  It  is  war,  and  nothing  but  war. 

Now,  this  war,  as  I  have  said,  was  between  the  Govern 
ment  of  the  United  States  on  the  one  side,  and  the  people, 
whether  communities  united  or  dispersed,  who  were  in  the 
rebellious  revolt,  on  the  other  side.  Our  learned  friends  say 
that  it  was  not  between  the  United  States  and  any  State 
Government,  to  which  I  agree.  There  is  not  any  posture 
in  which  the  State  Government  could  be  recognized  (as  a 
civil  and  political  body  under  the  Constitution  of  the  United 
States)  as  at  war  with  the  United  States.  We  are  at  war 
against  the  total  power  of  war  that  is  moved  against  us. 
But  yet,  owing  to  the  divisions  of  the  people  into  the  States 
forming  a  part  of  the  United  States,  apparently  constituted 
as  a  part  of  its  political  arrangement,  and  of  its  political 
power,  it  has  the  form  and  appearance  of  a  public  war  on  the 
side  of  the  rebellion  as  well  as  on  our  side. 

This  brings  me,  perhaps,  to  the  distinction  which  I  have 
indicated  to  your  Honors,  as  lying  at  the  bottom  of  the  argu 
ment  on  the  part  of  our  learned  brothers,  between  personal 
and  territorial  war.  Now,  treason  is  the  crime  of  those  who 
commit  it.  Unquestionably  they  are  the  enemies  of  the 
Government.  They  are  subject,  for  their  personal  guilt,  to 
the  penalties  of  criminal  law.  Whenever  our  Government 
has  authority,  when  its  laws  have  their  course  and  play, 
then  the  guilt  of  these  persons  is  to  be,  at  the  will  of  the 
Government,  a  matter  of  judicial  inquiry;  and  then,  against 
them,  as  persons,  no  procedure  of  any  kind  can  be  had  ex- 


248         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

cept  by  the  authority  of  the  Constitution,  according  to  its 
guarantees,  in  its  constitutional  tribunals,  before  judge  and 
jury.  We  have  no  controversy  on  that  point.  I  do  not 
know  any  manner  in  which  this  Government  has  a  right  to 
proceed  personally  against  individuals  at  the  South  in  re 
spect  of  crime,  or  for  treason,  or  for  treasonous  war,  except 
under  the  Constitution,  by  indictment,  by  trial  before  a 
jury,  by  conviction,  by  sentence,  by  execution.  The  num 
ber  of  those  criminals  makes  no  difference  in  our  rights  to 
wards  them,  under  the  peaceful  authority  of  the  Govern 
ment,  under  municipal  law.  But  the  trouble  about  the 
matter  is  that  this  very  authority  of  law  over  traitors,  and 
for  the  punishment  of  treason,  is  overthrown  with  all  the 
other  authority  of  the  Government.  If  our  law  of  treason 
had  force  and  efficacy  there,  why,  our  other  laws  would  have 
force  and  efficacy  too. 

If  your  Honors,  in  your  respective  circuits  that  fall  within 
the  geographic  limits  of  the  rebellion,  could  sit  and  try  men 
for  treason,  it  is  likely  you  would  be  allowed  to  sit  there  and 
try  causes  between  man  and  man.  That  is  not  the  favorite 
exception  which  they  would  like  to  make  in  obeying  the 
jurisdiction  of  the  Federal  Court.  The  moment  you  get  to 
the  possession  of  their  persons  and  can  punish  them  as 
criminals,  that  moment  the  war  is  over,  and  the  tribunals 
have  their  place  and  their  power.  At  the  outbreak  of  a 
treasonous  war,  when  it  has  agitated  itself  into  the  inflam 
mation  which,  by  our  Constitution  is  necessary  to  make  it 
treason — the  levying  of  war  against  the  Government  of  the 
United  States, — you  may,  when  it  has  reached  that  point, 
pursue  it  without  war.  To  that  I  agree.  You  may  send 
your  marshal  and  enough  deputies  to  capture  the  whole  war. 
That  is,  constitutionally,  sufficient  to  involve  men  in  treason. 
You  may  call  upon  all  the  power  of  the  district,  if  necessary, 
and  it  may  amount  to  a  hundred  thousand  men.  That  may 
be  sufficient  to  suppress  the  treason,  and  seize  the  traitors. 


THE  PRIZE  CASES  249 

The  court  can  be,  all  the  while,  sitting;  and  all  can  be  done 
with  a  marshal  and  posse  comitatus.  That  is  all  very  in 
telligible.  But,  supposing  that  the  traitors  and  the  trait 
orous  war  will  not  preserve  that  straitened  and  feeble  condi 
tion  in  which  municipal  law  and  the  peaceful  administration 
of  Government  has  its  exercise  over  them — suppose  they 
change  it  from  a  personal  war  into  a  popular  war  or  the  war 
of  all  the  people  that  inhabit  the  State,  or  into  a  territorial 
war  or  the  war  of  the  entire  region  which  constitutes  the 
country  in  which  they  live,  are  we  to  be  told  that,  they 
having  turned  it  into  popular  war  of  a  people  and  into  ter 
ritorial  war  or  the  war  of  a  territory,  against  us,  we  must 
preserve  still  the  notion  that  it  is  a  personal  war  on  our  part, 
and  that  we  have  no  efficacious  and  legal  penetration  through 
the  barriers  of  territorial  defences  in  the  pursuit  of  individual 
traitors,  by  the  power  of  the  Government?  Where  do  my 
learned  friends  find  a  right  on  the  part  of  the  Government  to 
escape  from  the  bonds  of  municipal  authority  and  municipal 
obedience  on  their  part  and  to  follow  the  personal  treason 
ous  enemies  of  the  country  by  war?  I  do  not  know  where 
it  is  to  be  found.  I  do  find  a  power  to  suppress  a  rebellion. 
I  find  a  power  to  use  the  army  and  navy,  and  the  whole 
militia  of  the  United  States,  that  is,  to  use  all  the  forces 
and  powers  of  war  that  the  country  possesses.  Is  there 
anything  left  out?  Is  there  anything  which  belongs  to  the 
war  powers  of  the  Government  except  its  army,  its  navy,  and 
its  entire  arms-bearing  population?  Certainly  not.  I  find 
the  power  to  use  that  to  suppress  the  rebellion;  but  I  do 
not  find  an  injunction  that  it  shall  be  used  in  a  way  that  will 
not  suppress  it  and  cannot  suppress  it.  I  do  not  find  any 
limitation.  I  do  not  find  that,  when  you  have  got  the  army 
and  the  navy,  and  the  entire  arms-bearing  population  of  the 
country,  the  Government  is  so  trammeled  that  it  can  only 
proceed  to  hunt  up  traitors  and  bring  them  in  for  trial.  I 
do  not  find  that,  when  the  war,  in  the  name  of  rebellion, 


250         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

urged  against  the  Government,  is  of  that  extent  that  it  is  of 
a  people,  and  of  their  territory,  and  of  their  trade,  the 
Government  cannot  return  the  war  on  that  people,  on  their 
territory  and  on  their  trade.  I  do  not  find  that  the  function 
of  war  is,  in  the  least,  to  catch  and  arrest  traitors.  It  is  to 
introduce  peace  through  war.  It  is  that  the  Constitution 
and  the  laws  of  the  country  may  prevail  again,  and  so  trait 
ors  may  personally  be  seized  and  punished.  But  the  propo 
sition  that  we  are  all,  in  time  of  war,  executing  the  powers  of 
peace,— while,  if  the  powers  of  peace  could  be  executed, 
there  would  not  be  either  any  justification  or  any  existence 
of  war — is  confounding  the  necessary  distinctions.  War 
gives  us  no  hope  or  promise,  however  it  arises,  except  that 
it  will  restore  peace.  When  it  is  waged,  when  it  is  master  of 
the  theatre  on  which  it  is  played,  peace  and  peaceful  powers 
are  wholly  driven  out;  and  only  in  the  train  of  successful 
and  triumphant  war,  or  of  unsuccessful  and  defeated  and 
submissive  war,  does  peace  ever  return.  Peace,  in  and  of 
its  powers,  of  its  faculties,  of  its  duties,  never  will  bear 
sway  over  any  portion  of  this  territory  or  this  people  that 
has  raised  itself  in  war  against  the  Government,  except  so 
far  as  the  power  of  our  war  shall  have  rescued  territory  and 
people  from  the  power  of  their  war,  and  restored  them  to 
the  Constitution  and  the  laws,  and  the  jurisdiction  and  the 
protection  of  this  country — or  just  so  far  as  their  war  is 
successful,  predominant,  triumphant,  subversive  of  our 
power  and  our  Government,  shall  arise  a  new  municipal 
authority  which,  in  peace,  shall  execute  new  laws. 

The  charge  of  his  Honor  Judge  Nelson  has  been  referred 
to  on  the  printed  briefs,  and,  I  think,  also  adverted  to  in  the 
oral  arguments,  as  being  supposed  to  give  some  counte 
nance  to,  or  to  sustain  some  inference  favorable  to,  this  dis 
tinction  between  personal  and  territorial  war,  which,  as  I 
have  submitted  to  the  Court,  must  be  determined  by  the 
question  of  personal  or  territorial  facts,  I  am  unable  to 


THE  PRIZE  CASES  251 

find  in  the  charge  of  his  Honor,  the  Judge,  to  the  Grand 
Jury  in  his  circuit,  anything  that  can  support  this  view,  in 
any  application  to  the  subjects  of  discussion  in  the  Prize 
Court,  and  now  before  this  tribunal.  In  the  first  place, 
your  Honors  see  that  the  very  attitude  of  the  learned  Judge, 
in  addressing  a  charge  to  a  Grand  Jury  which  has  inquisition 
of  personal  crimes,  must  almost  necessarily — must  most 
suitably  and  therefore  necessarily — have  been  limited  to 
considerations  that  had  to  do  with  personal  guilt;  and  the 
aspect  in  which  his  Honor  presented  the  subject  to  the  jury 
had  not  the  least  connection  with  this  matter  of  whether 
war  can  be  waged  against  a  people  and  against  a  territory 
that  were  incorporated  in  the  adverse  war,  but  was  wholly 
as  to  the  municipal  legislation  in  force,  and  under  which  sub 
jects  could  be  brought  before  grand  juries  for  indictment  and 
trial  for  personal  crimes.  After  presenting  the  subject  of 
treason  under  two  branches  of  the  clause  in  the  Constitu 
tion,  that  of  levying  war  and  of  adhering  to  the  enemy,  his 
Honor  presents  this  consideration — and  at  the  very  outset 
the  Court  will  perceive  that  the  learned  Judge  rejects,  in 
the  very  phrase  of  his  address,  all  these  distinctions. 

"The  unhappy  condition  of  our  country  arising  out  of  the 
unnatural  struggle  of  the  people  of  a  portion  of  the  Union 
to  overthrow  their  Government." 

Not  a  portion  of  the  people  of  the  Union,  not  of  individual 
and  personal  hostilities  to  the  Government,  but  "the  un 
natural  struggle  of  the  people  of  a  portion  of  the  Union  to 
overthrow  their  Government."  Now,  this  at  once  recog 
nizes  and  rests  upon  the  fact  that  "the  unhappy  condition 
of  our  country,"  no  matter  how  it  originated,  in  treasonous 
resistance  and  repugnance  to  the  Government,  has  come  to 
be  a  struggle  of  the  people  in  their  aggregate  sense,  of  a 
territorial  portion  of  the  citizens  of  the  United  States,  for 
the  overthrow  of  their  Government.  It  is  not,  in  fact,  of 
the  least  moment  in  the  estimate,  if  hostilities  arise,  what  the 


SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

original  designs  or  what  the  actual  motives  were  which  have 
grouped  together  the  combatants.  Whenever  an  entire 
people,  in  their  several  means  and  measures  of  power,  are 
wrought  into  a  unit  of  hostility,  and  so  thrust  and  wielded 
and  urged  against  the  Government,  then  the  Government 
must  oppose  it,  as  a  unit  of  hostility,  so  thrust,  and  wielded, 
and  urged,  or  it  falls  into  the  folly  of  using  inappropriate 
and  inadequate  means  of  suppressing  a  rebellion  which  would 
be  worse  than  submission. 

Then  the  tenor  of  the  learned  Judge's  reasoning — in  the 
course  of  which,  passages  taken  from  it  are  pressed  into  the 
service  of  our  learned  adversaries — is  this:  In  estimating 
what  the  offence  of  giving  aid  and  comfort  to  the  enemy  is, 
and  when  it  can  arise  (always  a  personal  offence,  triable  and 
punishable  by  law)  he  starts  with  the  proposition  that  the 
maintenance  of  mere  personal  intercourse,  by  correspond 
ence  or  otherwise,  between  the  citizens  of  our  loyal  region 
and  the  citizens  or  residents  of  the  territory  in  revolt,  is  not 
a  common-law  offence  under  the  Constitution  of  the  United 
States,  and  then  shows  what  the  rule  of  the  law  of  nations 
is — which  is  stated  to  be  that  "war  interrupts  the  commerce 
of  the  hostile  nations,  the  intercourse  of  every  citizen  with 
the  other,"  but  that  in  a  civil  war  there  is  no  such  necessary 
interruption  of  mere  intercourse  between  loyal  citizens  of 
one  region  and  loyal  citizens  of  the  other,  and  that,  under 
the  law  of  nations,  there  is  no  personal  guilt  attributable  to 
the  maintenance  of  intercourse  between  the  citizens  of  one 
nation  and  the  citizens  of  the  other,  but  that  the  penalty  of 
the  confiscation,  capture,  and  condemnation  of  the  property 
involved  is  all  that  happens,  so  that  no  personal  crime  arises 
even  there.  By  the  common  law  of  England  it  is  a  misde 
meanor  to  hold  intercourse  with  the  enemy;  but  his  Honor 
had  rejected  the  common  law,  in  the  statement  that  in  fed 
eral  jursidiction  there  is  no  common  law.  Then  the  point 
was,  how  far  is  there  an  interdiction  of  communication  as 


THE  PRIZE  CASES  253 

matter  of  statutory  prohibition,  and  what  penalties  are  an 
nexed  to  it;  and  the  act  of  1861  is  appealed  to  as  the  measure 
and  extent  of  the  prohibition  by  the  Government  of  mere 
intercourse  harmless  and  innocent,  that  is  not  hostile  in  in 
tent  to  the  Government,  which  would  be  otherwise  permit 
ted.  Then  the  learned  Judge  says  that  under  that  act  the 
only  penalties  introduced,  the  only  consequences  of  infrac 
tion,  are  the  confiscation  of  the  property  or  the  vehicle  thus 
involved,  and  that  no  personal  crime  is  impu table  to  mere 
intercourse  between  loyal  people  with  loyal  people,  against 
the  mere  form  and  effect  of  that  act.  But  then  the  learned 
Judge  warns  the  Grand  Jury,  as  representing  the  criminal 
inspection  and  inquisition  of  the  community,  that  if  the 
people  on  this  side  of  the  line  of  hostilities  hold  communica 
tion,  commercial  or  otherwise,  with  the  community  on  the 
other  side,  with  the  view  and  intention  of  giving  information, 
supplies,  assistance,  in  any  form,  to  the  rebellion  and  its 
purposes,  they  place  themselves  in  the  condition,  not  of 
penalty  under  the  act  of  1861,  but  of  penalty  under  the 
general  criminal  statutes  punishing  treason  or  connection 
with  treason. 

Now,  I  put  it  to  the  Court,  and  I  think  consonant  with  the 
sense  of  the  learned  Judge  who  delivered  the  charge,  that 
there  is  no  authority  to  be  derived  therefrom  in  support  of 
the  sentiment  that  we  are  reduced  to  personal  war  which 
would  be  wholly  ineffectual,  and  cannot  resort  to  territorial 
war,  which  would  be  and  must  be  the  only  means  of  success 
against  the  rebellion. 

The  4th  proposition  attributes  to  the  state  of  war,  thus 
existing,  and  between  the  parties  to  it  thus  described,  all 
the  powers  of  public  war,  including  the  right  of  blockade, 
and  including  the  right  of  maritime  capture,  as  enemy  prop 
erty;  and  I  shall  not  think  it  necessary  to  ask  your  Honors' 
attention  to  the  authorities  collated  under  that  point. 
By  reference  either  to  well-recognized  general  principles  or 


254         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

to  leading  cases,  your  Honors'  attention  has  been  sufficiently 
drawn  to  this,  I  believe,  indisputable  fact,  on  authority, 
that  whenever  the  actual  condition  of  a  nation  prosecuting 
its  right  by  force  against  another  nation  or  against  a  rebel 
lion,  exists  in  fact,  the  public  law  of  the  world  insists  upon  it 
that  the  laws  of  war  shall  intervene,  shall  regulate,  shall 
moderate,  shall  assuage  mere  violence  of  force;  and  that  the 
method  and  the  only  method  by  which,  in  the  application  to 
public,  international  war,  these  ameliorations  have  been  in 
troduced  and  have  been  submitted  to,  in  the  interest,  and 
by  the  right  and  power  of  the  belligerents,  is,  that  the  laws 
of  war,  in  their  secondary  coercion  on  the  trade  and  on  the 
status  of  the  warring  populations,  give  efficacy  to  the  power 
of  war,  while  they  rob  it  of  its  violence,  and  of  its  cruelty, 
and  of  its  carnage.  So,  in  civil  war,  where  there  is  much 
greater  reason  for  the  intervention  of  its  humane  influences, 
we  see  it,  with  equal  impartiality,  introduce  its  secondary, 
coercive,  powerful  rights  of  repression  on  the  rebellious 
region  and  people,  as  if  it  were  a  community  subject  to, 
and  sensible  of,  the  impressions  which  the  power  of  war  in 
these  terms  makes. 

SECOND  DAY 

I  had  reached,  if  the  Court  please,  a  consideration  de 
pendent  upon,  and  forming  a  part  of,  the  more  general 
propositions  which  I  had  the  honor  of  submitting  to  your 
attention,  and  which  had  brought  me  to  the  5th  proposi 
tion  on  the  26th  page  of  my  brief:  That  war  is  essentially, 
and  as  much  as  anything  in  human  affairs,  a  question  of 
actualities,  is  apparent  to  our  reason  and  is  obvious  on 
the  pages  of  history.  War  comes  of  itself,  unwelcome  gen 
erally,  unbidden  frequently,  introduced  by  no  preparation 
of  law  and  no  solemn  warning.  If  this  be  so,  it  is  appar 
ent  that  whatever  solemnities  are  wanting,  and  whatever 
chains,  or  obstructions,  or  control  the  interior  structure  of 


PRIZE  CASES  255 

a  government  seeks  to  interpose,  or  does  interpose,  to  its 
rash  or  capricious  introduction,  nevertheless  if  war  appears, 
wanting  any  solemnities,  and  against  and  over  all  these 
checks  and  obstructions,  when  it  is  present,  when  it  main 
tains  position,  when  peace  is  driven  out,  when  the  laws  are 
silent — whether  they  ought  to  be  silent  or  not — war  rules, 
and  gives  its  own  laws. 

Now,  the  rules  and  laws  of  war  have  no  respect  whatever 
for  the  methods,  the  purposes,  the  protection,  the  discrimi 
nations,  the  happiness,  the  prosperity,  of  peace.  All  these 
delightful  and  necessary  qualifications  of  human  affairs  are 
included  in  the  word  "peace,"  and  they  have  withdrawn 
with  it,  and  are  to  be  restored  only  in  the  train  of  peace. 
And  the  methods  of  war,  and  the  laws  of  war,  have  no  other 
purpose  and  no  other  rationale  than,  by  suppressing  and 
destroying  the  opposing  war,  which  is  the  impediment  to 
peace,  to  restore  peace.  But  it  wastes,  in  civil  and  disor 
ganizing  efforts  to  maintain  peace  during  war,  none  of  its 
energies  which  are  applied  to  the  complete  restoration  of 
peace.  A  peaceful  war  will  bring  back  no  peace,  but  one  full 
of  the  elements  and  future  threats  of  war.  The  means  are 
abundant  to  secure  the  end,  which  never  can  be  secured 
except  by  the  observance  of  the  means.  My  learned  friend, 
Mr.  Lord,  in  his  discussion  of  this  subject  how  war  may  orig 
inate  and  be  in  possession  of  the  situation,  was  satisfied  to 
hold  and  declare  that  even  in  respect  of  a  foreign  nation  and 
the  introduction  of  international  war,  the  force  of  the  Con 
stitution,  which  entrusts  to  Congress  the  duty  and  the  power 
of  declaring  war,  makes  it  necessary  that  war,  waged  against 
us,  ad  exteros,  war  denounced  or  declared  against  us,  ad 
exteros,  did  not  put  this  nation  at  war,  in  the  sense  that  the 
status  of  its  people  was  changed  from  their  peaceful  relations 
abroad  and  their  peaceful  relations  at  home.  He  rested,  or 
arrived  necessarily,  if  not  in  his  own  reasoning,  yet  in  the 
course  to  which  he  tended,  at  this:  that,  in  that  situation 


256         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

between  two  nations  one  may  be  at  war  with  the  other,  and 
the  other  at  peace  with  the  first;  that  the  moment  of  the 
incipient  hostility  had  changed  all  the  attitude  and  relations 
of  the  subjects  of  that  power  by  the  initiation;  but  that  the 
subjects  of  the  other  power,  in  their  relations  among  them 
selves,  and  towards  the  enemy,  were  left  unchanged  until 
their  own  nation  intervened.  Such  a  proposition  finds  as 
little  support  in  the  authorities  as  it  does  in  the  necessary 
reason  of  the  matter.  Our  wars  have  always  been  in  the 
form,  so  far  as  Congress  has  intervened,  of  recognition  of  the 
situation  of  war  as  existing.  The  preamble  to  the  Mexican 
War  Act  is  familiar  to  us.  The  act — there  being  no  pre 
amble — of  the  war  of  1812  is  in  the  same  sense  and  to  the 
same  effect.  It  does  not  take  the  form  of  denouncing  war 
against  England,  which  is  the  sense  in  which  "declaring  war" 
is  used  by  the  publicists  and  in  the  Constitution — denunciare 
bellum,  to  declare  and  denounce  war,  as  the  affirmative  action 
of  the  Government  so  entering  on  its  prosecution.  But  it 
declares  an  existing  war,  using  the  phrase  in  the  sense  of 
ascertainment,  promulgation,  publication. 

But  does  not  a  unilateral  declaration  of  war,  which  is  the 
phrase  of  the  publicists,  put  the  other  nation  at  war?  I  ask 
your  Honors  to  note,  on  the  margin  of  page  27,  a  reference 
to  the  case  of  the  Eliza  Ann,  1st  Dodson,  247, — a  case  which 
is  on  the  brief  of  my  learned  opponents,  but  not  in  this  con 
nection.  Sir  Wm.  Scott  says: 

"War  may  exist  without  a  declaration  on  either  side.  It 
is  so  laid  down  by  the  best  writers  on  the  law  of  nations.  A 
declaration  of  war  by  one  country  only  is  not  a  mere  chal 
lenge  to  be  accepted  or  refused  at  pleasure  by  the  other.  It 
proves  the  existence  of  actual  hostilities  on  one  side  at  least, 
and  puts  the  other  party  also  into  a  state  of  war,  though  he 
may,  perhaps,  think  proper  to  act  on  the  defensive  only." 

There  is  no  such  thing  between  nations  as  one  at  war  with 
the  other  and  the  second  at  peace  with  the  first.  And  on 


THE  PRIZE  CASES  257 

this  very  matter  of  adverse  hostility  commenced,  or  war 
denounced,  changing  the  situation  of  the  subjects  of  the 
other  power,  without  the  least  intervention  of  their  Govern 
ment,  and  from  the  date  and  fact  of  the  adverse  hostilities, 
without  even  its  communication  to  the  second  power,  I  ask 
your  Honors'  attention  to  the  case  of  Oom  against  Bruce,  12 
East.  225.  This  was  an  action  to  recover  back  a  premium  of 
insurance;  and  the  question  was  whether  a  state  of  war 
existed  at  the  time  the  insurance  was  effected,  so  as  to  render 
the  policy  void.  The  case  was  in  a  British  court,  between 
two  British  subjects.  Hostilities  had  been  commenced  by 
Russia  against  England  the  day  before  the  insurance  was 
effected,  but  it  was  not  known  to  either  party  at  the  time. 
For  the  defendant  it  was  insisted  that  nothing  which  was 
done  by  Russia,  even  if  it  had  been  known  here,  would  have 
bound  British  subjects,  until  the  state  of  war  had  been  known 
and  recognized  by  their  government.  Lord  Ellenborough 
says: 

"The  commencement  of  hostilities  by  Russia  against  this 
country  placed  the  two  countries  in  a  state  of  hostilities  and 
made  the  subjects  of  Russia  enemies  to  the  country  at  the 
time  when  this  insurance  was  effected.  Formal  declarations 
of  war  only  make  the  state  of  war  more  notorious,  but, 
though  more  convenient  in  that  respect,  are  not  necessary 
to  constitute  such  a  state." 

Now,  no  distinction  can  be  drawn  in  the  application  of 
such  a  case  as  this,  from  any  diversity  between  the  British 
Constitution  and  our  own.  The  British  Constitution  attrib 
utes  the  power  of  denouncing  war  to  the  Crown,  ours  to  the 
Congress.  But  the  Crown  of  England  had  as  little  declared, 
as  little  accepted,  as  little  known  of,  acquiesced  in,  or  made 
the  nation  a  party  to,  the  state  of  war  introduced  by  the 
Russian  hostilities,  as  if  it  had  been  attributed  to  Parliament, 
as  it  is  with  us  to  Congress. 

I  have  said  to  the  Court  that  international  law,  and  munic- 
10 


258         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

ipal  law,  as  it  retires  before  the  law  of  war,  contemplate 
alike  no  divided  empire  of  war  and  peace.  When  war  has 
begun,  peace  is  ended;  when  war  is  ended,  and  not  till  then, 
peace  is  restored.  The  maxim,  silent  leges  inter  arma,  is  not 
so  much  a  sentiment  or  a  principle  as  it  is  a  fact.  Not  that 
the  laws  ought  to  be  silent,  not  that  the  laws  wish  to  be 
silent,  but  that  law  speaks,  when  it  speaks  at  all,  with  a 
potential  voice,  not  of  persuasion,  not  of  entreaty,  but  of 
command;  and  when  its  command  is  taken  from  it,  its  voice 
is  silent  till  its  command  is  restored.  When  the  execution 
of  the  laws  is  sought  to  be  put  in  operation  under  the  peaceful 
power  of  government  and  by  municipal  authority,  and  it 
finds  the  culprit  against  whom  its  writ  is  to  be  executed, 
hedged  in  by  armed  defenders  in  the  array  of  war,  the  minis 
terial  municipal  officer  reports  that  the  process  cannot  be 
served  by  reason  of  this  warlike  protection  and  defence  to 
the  culprit.  The  Court,  then,  is  silenced  for  the  future;  and 
thereupon  the  appeal  is  to  the  Government  that  peaceful 
administration  cannot  execute  the  laws.  No  feeble,  no 
querulous,  no  undignified  attempts  to  skulk,  and  penetrate 
by  stealth  and  fraud  those  lines  of  war,  are  attempted;  but 
the  Government  is  advised  that  when  the  power  of  war  con 
fronts  municipal  authority,  municipal  authority  is  over 
thrown,  and  .that  there  is  neither  faculty  nor  strength  to 
restore  it  but  by  some  mode  and  power  commensurate  with 
that  opposed  to  it.  And  that  might,  and  that  strength, what 
ever  you  may  call  it,  is  superior  force.  Pursuing  no  laws 
but  the  laws  of  force  and  strength;  and  that  is  war. 

The  record  of  the  Hebrew  Commonwealth  furnishes  an 
instructive  illustration  of  this  necessity — that  peace  and  war 
shall  not  exist  together.  The  war  declaration  of  the  Hebrew 
was:  "Beat  your  plowshares  into  swords  and  your  pruning 
hooks  into  spears,"  and — the  war  ended — the  authoritative 
announcement  of  peace  was:  "Beat  your  swords  into  plough 
shares  and  your  spears  into  pruning  hooks."  These  imple- 


THE  PRIZE  CASES  259 

ments  of  war  and  peace  are  so  little  needed  at  the  same  time 
that  the  same  materials  may  serve  the  nation's  turn  for 
either  state. 

The  case  of  Elphinstone  vs.  Bedoochet,  which  is  on  my 
brief,  in  1st  Knapp's  Privy  Council  cases,  illustrates,  by  an 
actual  decision  of  the  Privy  Council  of  Great  Britain,  the 
proposition  of  Lord  Coke's  familiar  statement  and  of  Dr. 
Phillmore's  announcement  as  a  principle  of  the  law  of  nations, 
that  either  war  or  peace  is  the  condition  in  which  a  nation  is; 
and  the  law,  international  or  municipal,  contemplates  no 
transitional  or  intermediate  state.  Whenever,  therefore,  an 
offence,  whether  it  arises  for  criminal  punishment  or  for  civil 
redress,  is  brought  to  the  cognizance  of  a  court,  and  the 
situation  discloses  a  controversy  of  whether  it  was  peace  or 
war,  the  municipal  court  looks  at  that  question  and,  if  it  be 
war,  leaves  the  crime  and  leaves  the  personal  or  civil  injury 
to  be  disposed  of  by  the  law  and  the  tribunals  of  war,  or 
recurs  to  the  justice  or  favor  of  Government.  It  never  un 
dertakes  to  say,  there  being  war,  "we  will  treat  of  this  crime 
or  of  this  injury  according  as  we  think  the  war  motives  right 
or  the  war  motives  criminal."  Not  in  the  least.  If  it  be 
peace,  then  it  proceeds  against  the  accused,  or  in  the  main 
tenance  of  the  civil  rights  according  to  municipal  law,  and 
treats  it  according  to  the  full  measure  of  right  and  of  obli 
gation  under  municipal  law. 

Now,  this  case  was  an  action  of  trover  brought  against 
Lord  Elphinstone  and  one  of  his  principal  military  officers 
by  an  East  Indian  claimant,  for  about  thirty-six  million 
rupees.  The  court  in  India  gave  judgment  for  the  plaintiff 
for  1,700,000  rupees,  making  the  distinction  in  the  amount  of 
damages  accorded  between  that  part  of  the  property  of  the 
plaintiff  seized  by  the  public  military  officers  who  were  sued, 
which  was  his  private  property,  and  that  which  was  the 
property  of  the  East  India  Government,  which  formed  part 
of  the  capture.  The  statement  of  the  case  in  its  circum- 


260         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

stances  is  somewhat  prolix  and  full  of  detail;  but  the  note 
sufficiently  discloses  its  main  features: 

"The  members  of  the  provisional  Government  of  a  re 
cently  conquered  country  seized  the  property  of  a  native  of 
the  conquered  country,  who  had  been  refused  the  benefit  of 
articles  of  capitulation  of  a  fortress  of  which  he  was  Governor, 
but  who  had  been  permitted  to  reside,  under  military  sur 
veillance,  in  his  own  house  hi  the  city,  in  which  the  seizure 
was  made,  and  which  was  at  a  distance  from  the  scene  of 
actual  hostilities.  Held:  That  the  seizure  must  be  regarded 
in  the  light  of  a  hostile  seizure,  and  that  a  municipal  court 
has  no  jurisdiction  of  the  subject." 

Very  learned  arguments  at  great  length  were  presented  on 
the  one  side  and  on  the  other  by  the  leaders  of  the  British 
bar;  and  thus  briefly  is  the  case  disposed  of  in  the  Privy 
Council,  Lord  Tenterden  giving  its  opinion. 

"We  think  the  proper  character  of  the  transaction  was 
that  of  hostile  seizure,  if  not  flagrante,  yet,  nondam  cessante 
bello,  regard  being  had  both  to  the  time,  the  place,  and  the 
person ;  and  consequently  that  the  municipal  courts  have  no 
jurisdiction  to  adjudicate  on  the  subject,  but  that,  if  any 
thing  was  done  amiss,  recourse  can  only  be  had  to  the  govern 
ment  for  redress.  We  shall  therefore  recommend  it  to  His 
Majesty  to  reverse  the  judgment." 

Now,  thus  determinately  and  simply,  on  no  general  reason 
ing  or  unsupported  theory,  does  a  respectable  judicature 
deal  with  this  question  of  peace  or  war.  Lord  Stowell  says, 
that  Russian  hostilities,  commenced  the  day  before  this 
policy  of  insurance  was  issued,  made  a  state  of  war,  and 
thereafter,  all  the  laws  of  private  personal  relations  fell  under 
the  law  of  war.  So  the  Privy  Council,  by  Lord  Tenterden, 
says:  "nondam  cessante  bello  this  act  was  done;  we  have  no 
connection  with  it,  for  peace  is  not  restored  till  war  is  over, 
and  the  sovereign,  not  the  court,  must  deal  in  this  transaction 
for  the  redress  of  any  grievances  inflicted,  the  restitution  of 
any  rights  infringed." 


THE  PRIZE  CASES  261 

Martial  law,  if  the  Court  please,  which  has  formed  a  sub 
ject  of  judicial,  public,  and  political  discussion  in  the  coun 
try,  growing  out  of  the  condition  of  affairs,  has  also  formed  a 
subject  of  discussion  by  publicists.  It  is  a  local  and  limited 
application  of  the  law  of  war,  sometimes  in  your  own  country 
— and,  by  that,  I  mean  the  country  which  is  loyal  and  faith 
ful  and  supports  the  Government — sometimes  in  the  enemy's 
country;  and  under  very  peculiar  circumstances,  an  intru 
sion  into  the  neutral  territory  may  occur,  overruling  the 
law  of  nations,  which  does  not  respect  lines  of  neutrality. 
Now,  all  this  subject  of  martial  law, — most  useful  for  the 
preservation  of  the  law  of  peace,  of  the  municipal  authority, 
and  for  the  protection  of  the  general  rights  of  citizens  under 
the  Constitution — all  this  rule,  all  this  law,  and  all  this 
nature  of  martial  law,  its  rightful  and  authoritative  existence, 
its  limit  in  space  and  in  time,  all  turn  upon  this  doctrine  of 
the  actualities  of  facts  which  determine  war  or  peace  and 
determine  martial  law  or  municipal  law.  General  Halleck, 
in  his  treatise,  says: 

"What  is  called  a  declaration  of  martial  law,  in  one's  own 
country,  is  the  mere  announcement  of  a  fact.  It  does  not, 
and  cannot,  create  that  fact.  The  exigencies  which,  in  any 
particular  place,  justify  the  taking  of  human  life  without  the 
interposition  of  the  civil  tribunals,  and  without  authority  of 
the  civil  law,  may  justify  the  suspension  of  the  powers  of 
such  tribunals,  and  the  substitution  of  martial  law.  The 
law  of  war,  or  at  least  many  of  its  rules,  are  merely  the  result 
of  a  paramount  necessity." 

And  General  Cushing,  in  his  opinions,  to  be  found  in 
volume  8  of  the  Attorney  General's  opinions,  has  this  reason 
ing,  which  presents  the  matter  very  plainly: 

"There  may  undoubtedly  be,  and  have  been,  exigencies  of 
necessity  capable,  of  themselves,  to  produce  and  therefore 
to  justify  such  suspension  of  all  law  and  invoking,  for  the 
time,  the  omnipotence  of  military  power,  but  such  necessity 


262         SPEECHES  OP  WILLIAM  MAXWELL  EVARTS 

is  not  in  the  range  of  mere  local  questions.  When  martial 
law  is  proclaimed  under  circumstances  of  assumed  necessity, 
the  proclamation  must  be  regarded  as  the  statement  of  an 
existing  fact  rather  than  the  legal  creation  of  that  fact.  In  a 
beleagured  city,  for  instance,  the  state  of  siege  lawfully  exists 
because  the  city  is  beleagured,  and  the  proclamation  of 
martial  law  in  such  case  is  but  notice." 

Now,  what  martial  law  is,  in  its  limited  sphere  and  its 
temporary  maintenance,  that  is  martial  fact.  War,  in  its 
larger  feature  and  its  more  extensive  relation,  is  fact,  made 
fact  sometimes  by  the  voluntary,  purposed,  and  premeditated 
activity  of  a  nation  through  its  forms  of  law;  made  fact  fre 
quently  against  such  purpose,  certainly  against  such  avowed 
purpose,  but  however  made,  it  is  limited  by  fact. 

If  the  Court  please,  I  have  but  a  single  further  general 
inference  to  ask  your  attention  to,  growing  out  of  these  pro 
positions.  And  it  is  this:  That,  as  the  state  of  war  arises 
and  exists  as  a  matter  of  fact  against  a  government,  whether 
it  wills  it  or  not,  whether  it  has  induced  it  or  not,  whether  it 
wishes  that  it  shall  continue  and  be  prosecuted  or  not,  the 
powers  and  the  duties  of  every  government  against  which 
such  a  war  thus  arises,  to  oppose,  overwhelm,  and  subdue 
the  war,  whether  it  be  foreign  or  whether  it  be  domestic,  are 
themselves  facts  having  their  strength  and  their  dimensions 
altogether  measured  by  the  power,  the  efforts,  and  the  pur 
poses  of  the  war  that  is  moved  against  the  government  and 
the  nation.  You  cannot  codify  a  war  that  is  to  be  prosecuted 
against  you.  It  recognizes  no  measure  but  the  strength  and 
the  purpose  of  the  hostile  nation  that  comes  into  the  conflict. 
And  you  cannot  advance,  in  any  municipal  system  or  in  any 
constitutional  structure  of  a  nation,  any  such  constraint,  any 
such  impediment,  any  such  feebleness  in  its  power  to  oppose 
war  as  makes  it  necessarily  the  victim  of  a  surrender  when 
power  shall  be  moved  against  it  in  the  form  of  war,  outside 
of  the  limits  or  beyond  the  strength  that  the  nation  is  per- 


THE  PRIZE  CASES  263 

milled  to  use  against  it.  No,  just  as  truly,  just  as  necessarily 
as  in  the  case  of  private  war  arising  between  two  persons  on 
the  right  of  self-defence,  just  so  necessarily,  just  so  truly, 
when  war  arises  between  two  independent  powers,  whether 
they  be  independent  political  powers  or  howsoever  otherwise 
they  come  to  be  adverse  warring  powers,  there  is  not  any 
measure  to  the  right,  nor  any  measure  to  the  faculty  of 
either  nation  as  against  its  enemy,  but  the  strength,  the 
power,  and  the  resources  of  the  nation.  Its  right  is  to  defend 
itself  by  whatever  means  are  necessary;  and  the  means  that 
are  necessary  are  to  be  governed,  of  course,  by  the  author 
ities  of  the  nation,  but  are  to  be  governed  as  reasons  of  state, 
and  of  policy  and  of  military  prudence  and  military  judg 
ment.  It  will  be  found  that  all  arguments  that  seek  to 
reduce  or  restrain  the  exercise  of  the  power  of  a  nation  in  war, 
in  which  it  is  engaged  either  with  or  against  its  own  will,  and 
any  effort  to  reduce  the  power  and  authority  of  a  government 
that  has  been  put  to  the  necessity  of  exerting  the  powers  of 
war,  to  suppress  a  rebellion  or  insurrection  or  whatever  you 
call  it — any  interior  disturbance  that  has  escaped  the  bounds 
of  civil  power  and  needs  recourse  to  the  warlike  authority 
of  the  nation — anything  that  tends  to  hamper,  reduce  either 
in  the  measure  of  its  strength  or  in  the  variety  of  its  exercise 
the  authority  or  the  duty  of  the  Government  to  defend  itself, 
are  contrary  to  the  first  reason  of  the  law  of  self-preservation 
and  contrary  to  every  proposition  on,  and  justification  of, 
the  cause  of  war. 

The  Government,  in  time  of  peace,  protects  itself  natur 
ally  and  easily.  The  Government,  in  time  of  war,  can  pro 
tect  itself,  can  sustain  itself,  only  by  the  means  of  war.  And, 
as  Sydney  says  in  his  Treatise  of  Government,  "it  is  impious 
to  say  that  those  who  oppose  the  law  and,  by  their  strength 
and  power,  are  able  to  protect  themselves  from  its  peaceful 
authority,  are  to  be  saved  from  the  use  of  all  the  means  which 
the  nation  has,  to  overcome  their  resistance.  Against  such 
all  are  just." 


264         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

Now,  the  Court  will  perceive  that  there  is  nothing  in  the 
idea  that  the  powers  of  war  are  to  be  executed  in  order  to 
reduce  a  rebellion  to  the  control  of  the  civil  authority,  that 
makes  the  powers  of  war,  thus  applied  and  tending  to  that 
end,  in  the  least  an  exercise  of  municipal  authority  or  of 
punishment  towards  any  body  or  any  thing.  The  punish 
ments  are  to  come,  if  at  all,  when  the  law  that  can  authorize 
and  can  support  them  is  renewed.  It  would  seem,  therefore, 
that  if  a  war  arose,  before  the  statute  of  1795  was  passed  or 
before  the  statute  of  1807  was  passed,  whoever  properly 
represented  the  authority  of  the  nation  to  execute  the  powers 
of  peace  and  the  powers  of  war — in  distinction  from  enacting 
them — to  execute  the  laws  by  the  means  of  peaceful  author 
ity  or,  by  the  means  of  war,  to  reduce  under  peaceful  author 
ity, — whatever  power  thus  represented  the  nation  must,  in 
emergencies  and  under  necessity,  be  clothed  with  all  author 
ity  which  the  nation  could  second  and  support  by  its  strength. 

But/ if  the  Court  please,  in  the  actual  circumstances  of 
this  case,  under  the  Constitution  of  the  United  States  and 
under  the  existing  legislation  of  Congress,  there  is  no  need 
to  resort  to  these  general,  though  absolutely  true  propositions 
of  the  law  of  self-defence.  We  are  a  nation  that  possesses,  as 
matter  of  fact,  all  the  energies  and  all  the  material  resources 
which  make  up  a  powerful  people,  powerful  in  all  the  rela 
tions  of  peaceful  influences  with  other  nations,  powerful  in 
war;  and  we  have  a  Government  that  is  formed  on  no  prin 
ciple  of  feebleness  or  pointlessness  in  the  arrangement  of  its 
authorities,  and  in  its  being  the  head  and  leader  and  ruler  of 
so  great  a  nation,  formed  wisely  by  those  who  constructed  it, 
on  no  theory  that  peace  was  always  to  prevail,  although  they 
desired  it.  It  is  fully  furnished  with  all  the  weapons  at  once, 
and  with  all  the  shields,  that  belong  to  the  conflicts  of  war. 
And  this  was  in  full  exercise,  not  only  in  the  fundamental 
law  of  the  Constitution,  but  in  all  the  subordinate  legislation 
which  needed  to  proceed  from  the  action  of  Congress,  at  the 


THE  PRIZE  CASES 


265 


time  this  revolt  broke  out.  There  was  nothing  of  limit  either 
in  the  Constitution  or  in  the  laws  that  had  provided  for  an 
emergency  of  a  small  insurrection,  of  a  small  rebellion,  of  a 
small  invasion;  but  there  was,  in  the  department  of  this 
Government  having  political  authority,  a  full  measure  of 
strength  and  provision  for  an  invasion  that  should  at  once 
bring  along  the  Canada  line  an  army  of  200,000  men,  and 
along  the  coast  an  invasive  naval  power  of  500  ships  of  war. 
So,  too,  for  rebellion,  if  it  should  gain  the  awful  front  and 
tremendous  strength  that  this  did  before  the  war  powers  of 
the  Constitution,  under  the  laws  and  by  the  authority  of  the 
nation  were  to  be  levelled  at  it — so  far  as  the  authority  of 
law  went,  there  was  as  great  and  adequate  a  provision  for  a 
rebellion  that  should  seek  to  maintain  itself  over  half  the 
territory  of  the  Union  and  should  press  into  its  service  one- 
third  of  its  population.  So,  too,  it  was  as  well  prepared,  as 
completely  provided,  against  a  rebellion  that  should  have  a 
sea-coast  of  that  extent  and  should  seek  to  draw  for  its  sup 
plies  and  for  its  revenues  on  the  commerce  of  the  world. 
Whether  the  Government  had  the  physical  force,  had  the 
arms-bearing  population,  had  the  munitions  of  war,  had  the 
armaments  by  land  and  by  sea,  that  were  adequate,  were  the 
sole  questions  to  be  regarded  by  the  political  authorities  of 
this  nation.  They  did  not  need  to  wait  an  hour.  They  did 
not  need  to  await  support  from  any  other  department  of  the 
Government.  The  judiciary  was  not  to  be  consulted  at  all; 
the  Congress,  although  it  was  proper  that  it  should  be  called 
into  the  councils  of  the  Government  at  as  early  a  day  as 
possible,  had  yet  not  left  anything  deficient,  or  defective,  in 
the  arm  of  the  Executive  which  made  it  necessary  that  the 
nation  should  be  rent  before  Congress  could  be  convened. 

Now,  our  learned  friends  do  not  seem  to  dispute  that  there 
was  some  power  in  this  Government,  that  there  was  some 
power  to  do  something  that  was  not,  in  the  least,  within  the 
range  of  peaceful  authority  or  within  the  operation  of  muni- 


266         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

cipal  control;  but  they  come  to  the  point  of  division,  that  the 
Government  could  do  only  certain  things,  that  it  could  not 
do  this  or  could  not  do  that.  And  yet  there  is  nothing  in 
their  discrimination  between  what  the  President  could  do 
under  existing  Acts  of  Congress,  could  lawfully  require,  and 
what  he  could  not  lawfully  do  and  could  not  lawfully  re 
quire,  except  a  discrimination  as  to  what  was  necessary, 
what  was  useful,  what  was  proper,  what  was  beneficial, 
toward  the  end  proposed.  That  single  distinction  which  I 
shall  hereafter  meet  more  distinctly,  is :  That  although  every 
act  of  direct  force  and  of  immediate  weight  and  pressure  on 
the  rebellion  could  be  pursued  by  the  Government,  yet  any 
thing  that  came  into  judgment,  into  sentence,  into  judicial 
inquiry,  could  not  derive  its  origin  and  its  system  of  adjudi 
cation  from  any  acts  of  the  Government  without  special 
introduction  and  direction  ad  hoc  of  specific  legislation  of 
Congress. 

Now,  I  may  not  have  much  occasion  to  quarrel  with  that 
as  an  abstract  proposition,  because  I  find  nothing  in  the  na 
ture  of  the  prize  arrest  and  the  prize  adjudication  and  sen 
tence  which  partakes,  in  the  least,  of  the  qualities  of  subse 
quent,  retributive,  punitive  justice.  It  is  right  that  we 
should  see,  not  only  what  powers  the  Government  had  by 
the  very  nature  of  its  Constitution  to  defend  itself,  but  also 
understand  how  these  powers  were  distributed,  and  no  fault  is 
rightly  found  as  to  the  exercise  by  the  Federal  Government 
of  what  was  rightly  imposed  upon  it.  I  have  collected  under 
my  7th  proposition,  a  reference  to  the  heads  of  the  Constitu 
tion  touching  both  Congressional  and  Executive  authority 
in  this  matter  of  the  legal  power  of  the  Government.  Con 
gress  has  power  to  declare  war.  And  on  this  our  learned 
friends  insist,  as  carrying  the  extensive  consequences  of  non- 
declaration  of  war  by  Congress  that  they  have  claimed. 

Now,  if  your  Honors  please,  will  it  be  contended  before 
this  Court,  has  it  ever  been  made  a  matter  of  professional 


THE  PRIZE  CASES 


267 


opinion  or  argument,  that  this  clause  giving  to  Congress 
the  right  to  declare  war — that  is,  to  denounce  war — had  the 
least  reference,  in  the  sense  of  the  framers  of  the  Constitu 
tion,  or  in  the  proper  interpretation  to  be  given  to  it,  to  a 
state  of  rebellion  or  civil  war?  Is  it  true  that  this  phrase  of 
the  Constitution  that  has  relation  solely  to  the  functions  of 
the  Federal  Government  as  a  representative  of  the  national 
strength  ad  exteros  and  that  puts  in  this  branch  of  the  Govern-, 
ment  the  power  to  denounce  or  declare  war,  had  reference  to 
giving  to  Congress  the  exclusive  control  of  the  question 
whether  rebellion  or  insurrection  should  be  met  by  the  power 
of  the  Government?  Certainly  Congress  may  have  control, 
certainly  Congress  may  have  authority  to  this  or  that  extent 
over  these  internal  insurrections  or  rebellions,  however  they 
may  arise.  But  no  one,  it  seems  to  me,  can  say  that  under 
the  clause  of  the  Constitution  which  says  that  Congress  may 
declare  war,  the  power  of  the  Government,  or  the  duty  of 
the  Government,  or  the  resources  of  the  Government  for  the 
suppression  of  the  rebellion,  are  to  be  derived.  It  is  not  the 
will  of  Congress  that  is  to  determine  whether  rebellion  shall 
be  a  war  which  is  to  be  frowned  upon  and  suppressed.  The 
Constitution,  by  creating  the  nation,  makes  rebellion  against 
it  a  crime.  Duty  may  be  betrayed.  The  nation  may  be 
surrendered,  by  Congress,  by  the  President,  but  not  in  pur 
suance  of  the  Constitution. 

The  other  warlike  powers  are,  to  raise  and  support  armies, 
provide  and  maintain  an  army,  make  rules  for  the  govern 
ment  of  the  land  and  naval  forces.  And  these,  indeed,  give 
to  the  National  Legislature  the  complete  control  of  the  levy 
ing,  the  organizing,  the  preparation,  of  the  national  forces  by 
land  and  by  sea.  And,  as  has  been  made  the  matter  of  some 
judicial  interpretation,  as  it  is  of  the  necessary  sense  of  the 
clause,  these  powers  to  raise  armies  and  navies  gave,  of 
course,  to  the  Federal  Government,  by  its  Executive  or 
Congress,  authority  to  use  the  army  and  the  navy  in  the 


268        SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

form  of  war,  and  in  war,  domestic  or  foreign,  as  the  nature 
of  those  material  forces  may  indicate.  Now,  your  Honors 
will  find  that  the  next  clause  is  the  only  clause  of  the  Consti 
tution  that  has  specific  relation  to  any  power  in  Congress  in 
the  very  matter  of  domestic  rebellion  and  insurrection. 

"  14th.     To  provide  for  calling  forth  the  militia  to  execute 
the  laws  of  the  Union,  suppress    insurrection    and    repel 


invasion." 


Now,  if  we  are  to  stick  on  the  mere  phrases  of  the  Consti 
tution  as  giving  power  either  to  the  Executive  or  to  Congress 
in  the  matter  of  the  suppression  of  the  rebellion,  your  Honors 
will  perceive  that  there  is  here  a  distinct  limitation  of  the 
force  and  the  authority  of  Congress  in  the  matter  of  the  sup 
pression  of  rebellion  or  the  repression  of  invasion — "provide 
for  calling  forth  the  militia  to  execute  the  laws  of  the  Union, 
suppress  insurrection  and  repel  invasion."  But  it  is  not 
necessary  to  say  that  such  a  construction  overlooks  the  fact 
that  Congress  and  the  National  Government,  by  its  very 
constitution,  had  control  of  the  national  forces — the  land  and 
naval  forces  of  the  Government — for  all  the  purposes  of  en 
forcing  its  authority;  and  this  was  simply  a  provision  that 
they  should  have  equal  control,  in  this  emergency,  of  all  the 
arms-bearing  population  of  the  country,  thus  taking  from 
the  States  themselves  their  own  organized  militia  whenever 
the  national  power  was  necessary  to  be  exercised  either 
towards  a  foreign  nation  or  in  domestic  troubles. 

Now,  that  exhausts,  except  the  provision  for  organizing 
the  militia,  when  thus  introduced  into  the  service  of  the 
Government,  the  specific  war  powers  of  Congress.  How, 
then,  is  the  President  made,  under  this  Government,  a  head 
or  leader  of  its  material  strength,  of  the  energies  of  its  people, 
and  of  all  its  warlike  resources?  Why,  in  the  very  constitu 
tion  of  his  office  which  says  that  the  executive  power  of  this 
Government,  all  the  executive  power  of  this  Government,  all 
that  power  which  is  execution  in  distinction  from  legislation, 


THE  PRIZE  CASES  269 

and  judicial  determination,  all  that  there  is  of  a  Government 
in  its  divisions,  that  does  not  go  to  legislation,  that  does 
not  go  to  judgments  of  courts — that  is  all  in  the  President 
of  the  United  States.  There  cannot  be  more  than  that 
lodged  in  any  Chief  Magistrate,  whether  he  be  called  King 
or  Caesar,  excepting  that  the  Constitution,  by  its  divisions, 
of  what  it  attributes  to  the  legislative  authority  and  what  to 
the  courts  of  law,  determines  and  limits,  as  may  be,  the 
extent  of  Executive  power.  But,  that  the  waging  of  war, 
the  conducting  of  war,  whether  it  be  foreign  or  domestic, 
the  suppression  of  rebellion,  by  executing  the  power  of  the 
nation,  is  wholly  in  the  President  under  the  simple  authority, 
cannot  be  denied.  Congress  cannot  carry  on  the  war  against 
rebels  or  the  war  against  foreign  nations,  and  the  courts  of 
justice  do  not  intervene  at  all. 

But  again :  the  President,  by  the  solemn  induction  into  his 
office,  is  charged  with  every  duty,  and  has  awarded  to  him 
every  power  contained  in  the  Constitution  which  is  necessary 
to  the  maintenance  and  obligation  of  his  oath.  His  oath  is, 
that  he  will  faithfully  execute  the  office  of  President  of  the 
United  States,  and  will,  to  the  best  of  his  ability,  preserve, 
protect  and  defend  the  Constitution  of  the  United  States. 
What  is  meant  by  the  President's  undertaking  to  the  best  of 
his  ability,  to  preserve,  protect  and  defend  the  Constitution 
of  the  United  States?  It  is  not  the  best  fidelity  to  his  per 
sonal  duty,  or  to  the  best  of  his  personal  powers,  but  that  he, 
to  the  best  of  his  ability  with  which  he  is  clothed  by  the 
Constitution,  to  the  best  of  his  application  and  exercise  of 
the  public  authority  with  which  the  Constitution  has  clothed 
him — and  that  public  authority  is  the  whole  Executive  power 
of  the  nation.  He  is  thus  made,  in  form,  Commander-in- 
Chief  of  the  Army  and  Navy  and  of  the  Militia,  and  is  obliged 
to  see  that  the  laws  are  faithfully  executed. 

Now,  if  the  Court  please,  let  us  suppose  a  case.  Suppose 
that  an  insurrection  or  rebellion,  of  such  magnitude  that  it 


270         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

threatens  the  destruction  of  the  republic,  arises  during  the 
recess  of  Congress,  and  before  the  legislation  of  1795  and 
1807 — is  there  any  power  to  save  the  Government,  it  being 
clear  to  human  intelligence  that  it  must  be  saved  within 
sixty  days  or  destroyed?  There  is  a  great  national  army. 
It  has  strength  enough  to  suppress  the  rebellion.  There  is  a 
great  navy.  It  has  strength  enough  to  cut  off  the  resources 
and  supplies  of  the  rebellion,  without  which  it  will  wither  and 
die.  There  is  a  great  arms-bearing  population  of  loyal  and 
valiant  men  in  the  nation;  and  there  is  a  President  of  the 
United  States  and  a  Constitution,  clothing  him  with  these 
powers.  Shall  the  Government  stand  or  fall?  That  is  the 
proposition.  It  is  to  stand,  by  salvation  within  sixty  days; 
or  it  is  to  fall,  in  the  ruin  to  be  completed  within  that  time. 
Is  the  wisdom,  is  the  frame  of  this  Government  so  established 
that  in  silence,  from  respect  to  law,  in  reverence  bowing 
before  the  Constitution,  the  Government,  the  law,  and  the 
Constitution  are  involved  in  a  common  ruin?  Will  any 
lawyer  say  this?  Will  any  Judge  say  this?  Will  any  states 
man  say  this?  Will  anybody  say  that,  with  this  loyal  army, 
this  loyal  navy,  this  loyal  arms-bearing  population,  this 
faithful  President  who  has  sworn  to  use  all  his  ability,  this 
strong  Constitution  that  has  made  him  commander  of  all 
this  army,  this  navy,  this  militia,  and  the  head  of  all  this 
loyal  population,  the  executive  authorities  of  Government 
must,  in  silence,  see  the  ruin  of  the  whole?  Yet,  that  is  the 
proposition.  Or  if,  post  hac,  a  judge  or  a  lawyer  can  decide 
or  argue  that  the  President  cannot  do  this  and  cannot  do 
that,  and  if  "this"  and  "that"  were  all  that  could  save  the 
country,  then  it  would  follow,  from  such  argument  or  deci 
sion,  that  the  fabric  is  so  built  that  it  must  be  overthrown 
on  the  happening  of  such  a  concurrence  of  circumstances  as 
I  have  named. 

Now,  this  proposition  may  be  met.     It  may  be  met  in  the 
councils  of  the  Government,     It  may  be  met  in  the  recesses 


THE  PRIZE  CASES  271 

of  the  judicial  determination.  It  may  be  met  in  the  heart 
and  in  the  breast  of  every  citizen — and  there  is  no  answer 
but  this:  that  whatever  the  strength  of  the  nation  can  do  is 
lawful,  is  in  subordination  and  in  obedience  to  the  Consti 
tution,  done  under  the  authority  of  the  President. 

But  supposing,  if  the  Court  please,  that  instead  of  Con 
gress  not  being  in  session,  a  majority  of  its  members  are  in 
volved  in  the  treasonable  councils  and  are  well-wishers  to 
the  rebellion, — what  then?  Is  Congress  the  sovereign  of  the 
nation?  Why,  the  whole  theory  of  our  political  institutions 
is,  that  the  sovereignty  is  with  the  people;  and  of  its  sover 
eignty  there  is  withdrawn,  in  attribution  to  state  or  federal 
authority,  only  that  with  which  it  has  parted.  We  have  no 
king  given  us,  the  representative  of  our  power,  to  whom 
we  are  subject,  and  within  whose  power  all  ours  is  included. 
No;  this  is  our  proposition  of  sovereignty.  And  if  you  do 
not  attribute  to  Congress  or  to  the  Executive  the  acts  of 
sovereignty  which  can  save  a  nation  when  it  needs  to  be 
saved,  then  that  nation  has  that  act  of  sovereignty  itself, — 
for  it  must  be  saved,  and,  if  it  be  a  sovereign,  must  have  a 
right  to  be  saved. 

But,  if  the  Court  please,  who  will  say  that  a  rebellion  that 
includes  a  majority  of  Congress  makes  the  rebellion  the  law 
and  the  Constitution  and  the  right,  and  that  the  President 
and  the  power  of  the  country,  when  it  undertakes  to  main 
tain  the  old  Constitution,  the  united  territory,  the  ancient 
nationality,  is  revolution,  and  that  Congress  is  the  Consti 
tution,  and  the  permanent,  and  the  pre-existing  Govern 
ment?  That  is  the  very  nature  of  this  government  of  the 
people  under  the  written  Constitution.  As  the  people  are 
not  sovereign,  so  Congress  is  not  sovereign.  But  the  Con 
stitution — that  is  the  sovereign  and  its  law — and  whichever 
part — the  legislative  or  the  executive — rebels  against  the 
Constitution,  is  the  rebel;  and  if  it  seeks  the  means  of  force 
and  of  arms,  it  is  at  war.  If  the  rebellion  be  made  by  the 


272         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

President  in  office,  it  is  a  rebellion  against  the  Constitution; 
and  if  Congress  be  loyal  and  faithful,  it  assumes  the  powers 
of  Government  and  takes  its  measures  to  suppress  it.  So, 
too,  the  President.  And  so,  finally,  the  strength  of  the 
nation  under  the  lead  of  its  constituted  authorities,  by  its 
flag,  and  in  support  of  its  Constitution,  is  not  unfaithful  and 
is  not  revolutionary,  whatever  be  the  form  of  the  rebellion 
against  it. 

Now,  the  general  legislation  of  Congress,  exercising  its 
powers  constitutionally  had  furnished  an  army  and  navy; 
and  there  was  in  existence  an  organized  militia  when  this 
rebellion  broke  out.  And  there  were  also,  on  the  statute 
book,  statutes  of  permanent  application  and  wise  prevision 
which  had  undertaken  to  make  lawful  and  formal,  by  the 
concurrence  of  all  the  powers  of  the  Government,  the  author 
ity  given  by  the  Constitution,  that  should  meet  any  such 
case.  And  this  brings  me  to  the  consideration  of  the  act  of 
1795. 

Now,  if  the  Court  please,  lest  it  should  seem  that  in  the 
more  general  propositions  which  I  have  had  the  honor  and 
thought  it  necessary  to  submit  to  the  Court,  I  have  trusted 
to  my  own  deductions  or  to  my  own  views  of  the  simple 
reasons  on  which  it  all  rests,  I  have  asked  the  attention  of  the 
Court,  on  my  brief,  to  a  few  simple  and  conclusive  sentences 
from  the  authoritative  pen  of  Hamilton : 

"The  circumstances  which  endanger  the  safety  of  nations 
are  infinite;  and  for  this  reason,  no  constitutional  shackles 
can  wisely  be  imposed  upon  the  power  to  which  the  care  of 
it  is  committed.  This  power  ought  to  be  co-extensive  with 
all  the  possible  combinations  of  such  circumstances;  and 
ought  to  be  under  the  direction  of  the  same  councils  which 
are  appointed  to  preside  over  the  common  defence.  This  is 
one  of  those  truths  which,  to  a  correct  and  unprejudiced 
mind,  carries  its  own  evidence  along  with  it;  and  may  be 
obscured,  but  cannot  be  made  plainer,  by  argument  or  reason. 


THE  PRIZE  CASES  27S 

It  rests  upon  axioms  as  simple  as  they  are  universal.  The 
means  ought  to  be  proportioned  to  the  end;  the  persons 
from  whose  agency  any  end  is  expected  ought  to  possess  the 
means  by  which  it  is  to  be  attained." 

I  have  had  occasion,  if  the  Court  please,  to  present  no 
more  fundamental,  no  more  general  propositions  than  those, 
which  Hamilton  has  pronounced  so  plainly,  that  "argument 
can  only  obscure  them,"  and  as  simple  as  they  are  universal. 

Now,  the  Act  of  1795  does  not  undertake  in  the  least  to  say 
what  strength  or  head  of  rebellion  or  of  invasion  or  of  domes 
tic  disturbance  in  a  State  shall  exist  before  the  authority  of 
the  Government  is  to  be  exercised.  As  little  does  it  undertake 
to  say  how  much  power,  or  in  what  form,  the  Government 
shall  bring  to  bear  on  either  invasion  or  rebellion.  Nor  has 
it  undertaken  to  draw  any  distinction  between  its  purpose 
and  the  public  necessities  which  may  require  the  application 
of  the  powers  of  war  in  the  one  case  of  invasion,  more  than 
in  the  other  case  of  rebellion.  The  authoritative  part  of  the 
law  provides  that  whenever  the  United  States  shall  be  in 
vaded  or  be  in  imminent  danger  of  invasion  from  any  foreign 
nation  or  Indian  tribe — which  is  every  form  and  every  quar 
ter  in  and  from  which  invasion  can  be  expected,  in  all  human 
probability — "it  shall  be  lawful  for  the  President  of  the 
United  States  to  call  for  such  number  of  the  militia  of  the 
state  or  states  most  convenient  to  the  place  of  danger  or 
scene  of  action  as  he  may  deem  necessary  to  repel  such  in 
vasion,  and  to  issue  his  orders  for  that  purpose  to  such  officer 
or  officers  of  the  militia  as  he  shall  think  proper." 

Now,  if  the  Court  please,  when  we  take,  in  connection, 
the  statute  of  1807,  which  has  arrayed  under  the  authority 
of  the  President  the  whole  power  of  the  land  and  naval 
forces  proper  of  the  United  States,  do  we  not  see  that  the 
case  supposed  by  that  statute  for  the  exercise  of  the  powers 
given  by  it  to  the  President  is  a  case  of  war? — a  case  of  war, 
threatened  or  commenced  from  abroad,  in  the  form  of  inva- 

20 


274         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

sion,  and  that  the  powers  that  are  given  to  the  President  have 
not  the  least  quality  of  municipal  authority?  In  other 
words,  is  it  not  apparent  that  the  case  of  war  coming  upon 
the  country,  and  the  provision  of  war  to  meet  it  is  the  case 
and  the  authority  of  that  statute?  Nor  is  there  any  limit 
whatever.  The  country  is  to  give  all  the  militia,  all  the 
navy,  all  the  army;  and  the  Executive  is  to  use  them  as  the 
occasion  of  the  conflict  or  of  the  danger  may  require. 

So,  too,  in  the  next  case: 

"In  case  of  an  insurrection  in  any  state  against  the 
Government  thereof,  it  shall  be  lawful  for  the  President  of 
the  United  States,  on  application,  etc.,  to  call  such  number 
of  the  militia  as  he  may  judge  sufficient." 

This  refers  to  the  case  of  an  insurrection  against  the 
authority  of  a  State,  but,  as  is  adjudicated  and  as  is  necessary, 
an  insurrection  against  a  State  which  is  entitled  to  the  pro 
tection,  and  forms  a  part  of  the  frame  of  the  general  Govern 
ment  is  an  insurrection,  in  a  secondary  form,  against  the 
authority  of  the  Federal  Government.  Now,  here  all  the 
war  power  is  given — the  army,  the  navy,  and  the  militia. 
There  is  no  limit.  In  the  State  of  New  York,  with  its 
population  of  four  millions  and  in  its  connections  on  the 
lakes  and  on  the  sea,  an  insurrection  might  require  not 
only  the  theoretical  power  of  war,  so  distinctly  noted  and 
affirmed  by  the  Chief  Justice  giving  the  opinion  of  the 
court  in  the  case  arising  in  Rhode  Island,  but  might  re 
quire  the  actual  application,  in  its  forms  of  blockade,  in 
its  forms  of  all  the  oppression  and  suppression,  of  war  be 
fore  it  could  be  reduced.  Is  there  anything  in  that  statute 
that  limits  the  insurrection  in  New  York  to  being  a  muni 
cipal  disturbance,  under  municipal  authority?  May  it  not 
have  possession  of  the  port  of  New  York  and  the  ports  upon 
the  lakes,  and  have  control,  by  usurpation,  of  the  resources 
of  the  State  and  of  its  militia  of  400,000  men?  And  is  not 
this  a  case  where,  clearly,  war  is  to  be  pursued? 


THE  PRIZE  CASES  275 

Then  we  come  to  the  second  section: 

"Whenever  the  laws  of  the  United  States  shall  be  opposed 
or  the  execution  thereof  obstructed,  in  any  state  by  combi 
nations  too  powerful  to  be  suppressed  by  the  ordinary  course 
of  judicial  proceedings  or  by  the  power  vested  in  the  marshal 
by  this  act,  it  shall  be  lawful  for  the  President  of  the  United 
States  to  use  the  militia." 

And  by  the  Act  of  1807  he  can  call  out  the  army  and  navy. 

Now,  is  not  this  a  case  of  war?  If  it  were  necessary  to 
find,  in  formal  congressional  action,  a  provision  recognizing 
that  civil  authority  and  peaceful  control  of  Government 
was  gone,  and  that  the  power  of  war  should  be  applied  by 
the  President,  do  we  not  find  it  in  this  Act? 

What  are  the  English  definitions,  what  are  the  definitions 
by  the  publicists,  of  a  state  of  war  excepting  that  which  is 
very  distinctly  figured  in  this  statute?  that  is,  when  the  laws 
cannot  be  enforced,  and  the  power  of  the  marshal  is  inade 
quate  to  enforce  them.  What  is  the  power  of  the  marshal? 
It  is  the  entire  peace  power  of  the  country,  that,  under  its 
Constitution  and  its  laws,  is  to  be  brought  into  action. 
And  when  the  exhaustion  of  the  peace  powers  of  the  country 
has  occurred,  what  is  there  left  known  to  the  publicists  but 
the  war  power? 

I  say,  then,  in  the  8th  proposition  that  the  cases  put  by 
the  statute  are  a  war,  the  remedies  are  a  war.  Under  these 
statutes,  under  the  Constitution,  and  in  presence  of  the 
rebellion  such  as  is  known,  such  as  has  been  stated  by  my 
learned  associates  and  indicated  by  myself,  this  Govern 
ment  came  to  act.  Now,  we  have  left  only  to  see  what  it 
did  do;  it  being  left  to  the  Government,  its  Executive,  in  its 
administration  of  those  great  authorities  given  by  the  Con 
stitution  and  this  Act  of  Congress,  to  determine,  beyond  the 
subsequent  judgment  of  any  court  whether  it  should  deter 
mine  right  or  wrong.  (That  is  well  adjudicated.)  What 
did  the  President  do?  And  what  are  the  faults,  or  what  the 


276         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

excesses,  imputed  to  his  action,  as  bearing  on  inquiries  that 
are  open  in  these  prize  causes?  Your  Honors  will  not  be 
detained  by  any  recurrence  on  my  part  to  the  terms  of  the 
proclamations  or  of  the  message  of  the  President.  Suffice 
it  to  say,  that  on  the  15th  day  of  April  he  called  forth,  as 
I  submit  to  the  Court,  the  war  power  of  the  country  to  sup 
press  this  rebellion.  I  have  not  heard  that  any  fault  is 
imputed  to  that  proclamation  calling  for  the  75,000  men. 
If  he  had  called  for  750,000,  it  was  in  his  discretion.  On  the 
17th  of  April  a  new  movement  was  made  on  the  part  of  the 
rebellion.  What  was  that?  It  raised  the  threat  and  pre 
pared  the  execution,  of  the  suppression  of  the  commerce  of 
the  United  States.  A  proclamation  for  Letters  of  Marque 
and  for  Privateers,  inviting  all  who  would  take  commissions 
from  the  rebel  government  to  prey  upon  the  commerce  of 
the  United  States  was  issued.  Thus,  besides  being  a  per 
sonal  or  treasonous  war,  and  besides  being  a  territorial  war, 
it  was  made  by  the  rebellion,  on  the  17th  of  April,  a  war 
against  the  trade  of  the  United  States,  to  drive  our  commerce 
from  the  seas  and  to  reduce  the  resources  and  supplies  of  the 
national  strength.  On  the  19th  of  April,  meeting  blow  by 
blow  in  direct  force,  the  President  of  the  United  States  is 
sued  his  proclamation  of  blockade,  establishing  the  naval 
method  of  war  against  the  rebellion  indicated  by  the  neces 
sities  of  the  Government  and  its  duty  to  the  people.  What 
did  he  mean  by  it?  Did  he  mean  that  it  was  a  peace  block 
ade?  Did  he  mean  that  it  was  a  blockade  of  obstruction? 
Or  did  he  mean  that  it  was  a  blockade  under  the  war  power 
and  within  the  terms  of  the  law  of  nations?  Did  he  mean 
that  it  was  to  be  confined  to  the  forcible  exclusion  of  vessels 
and  was  to  carry  none  of  the  sanctions  by  which  a  blockade 
is  supported  under  the  law  of  nations?  No.  He  in  terms 
directed  that  "the  vessels  are  to  be  captured  and  sent  in  for 
adjudication  as  prizes."  We  had  thus  an  indication  not  to 
be  mistaken,  an  interpretation  not  to  be  withstood,  that  the 


THE  PRIZE  CASES  277 

President  of  the  United  States  did  undertake  to  use  the 
force  of  the  country  for  the  suppression  of  the  rebellion  in 
its  array  of  armies  on  land,  in  its  possession  of  the  territory 
of  the  United  States  which  it  had  wrested  from  the  power  of 
the  Government  and  against  its  trade  as  an  answer  to  its 
attack  on  the  trade  of  the  United  States. 

Well,  now,  Congress  assembling  on  the  4th  of  July,  the 
President  of  the  United  States  informed  it  that  he  had  called 
on  the  war  power  of  the  Government  under  the  Constitution 
and  the  laws.  We  then  are  able  to  meet  and  completely  repel 
the  suggestion  of  our  learned  friends  that  though  the  Presi 
dent  might  have  done,  yet  he  has  not  in  fact  done,  such 
acts  as  entitle  us  to  claim  that  the  war  power  of  the  Govern 
ment  has  been  exerted  for  the  suppression  of  this  rebellion. 
In  its  nature  it  is  sufficient,  but  in  the  intent  of  the  proclama 
tion,  in  the  message  to  Congress,  and  in  all  the  action  of  the 
Executive,  it  is  very  apparent  that  he  exerted  this  power. 

But,  if  the  Court  please,  Congress  came  together,  and  it 
did  pass  certain  acts.  Every  one  of  these  captures  was  made 
before  the  passage  of  any  Act  by  Congress  at  all  touching  the 
condition  of  the  country.  But  Congress  did  pass  certain 
Acts,  and  I  think  there  is  some  diversity  of  opinion  and  state 
ment  between  our  learned  friends  as  to  what  the  effect  of 
those  acts  is.  I  understood  the  Boston  propositions  to 
say  that  these  subsequent  Acts  of  Congress  do  retroact  upon, 
give  meaning  and  effect  and  purpose  to,  the  proceedings  of 
the  President,  make  them  rightful  and  in  law  effectual;  but 
then  they  claim  that  this  retroactive  effect  and  interpreta 
tion  do  not  make  the  acts  of  the  President  a  full  exercise  of 
the  war  power  against  trade  or  against  the  territory,  but 
only  give  them  a  personal  form  of  coercion.  On  the  other 
hand,  I  understood  Mr.  Lord  to  argue  that  there  is  and  can 
be  no  retroactive  effect  whatever  in  the  legislation  of  Con 
gress  on  the  predicament  as  existing  anterior  to,  and  at 
the  time  of,  the  captures  in  question.  So,  too,  I  do  not 


278         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

understand  our  friends  to  argue  that  there  is  not  a  war  now. 
I  do  not  understand  Mr.  Lord  to  argue  that  this  is  not  a  war 
now,  including  all  the  powers  and  all  the  rightful  exercise  of 
war,  in  maritime  capture,  in  blockade,  in  condemnation  of 
prize,  and  in  what  not.  But  he  says — and  this  is  his  funda 
mental  proposition — that  although  a  war  inter  gentes  from 
its  waging  and  prosecution,  on  the  mere  fact  of  its  existence, 
imports  to  itself,  under  the  law  of  nations,  all  the  authori 
ties  and  methods  known  to  that  law,  yet  a  civil  war  derives 
only,  and  is  limited  by,  in  its  modes  and  powers,  such  au 
thority  as  the  legislation  municipal  and  domestic  shall  give 
it.  And  he  says  that  the  Act  of  July  13,  1861, — if  I  under 
stood  him  aright — does  really  introduce,  under  legislative 
sanction  and  authority,  territorial  war,  with  its  consequences, 
which  he  deprecates,  not  in  word  and  in  form,  for  it  surely 
does  not  say  anything  about  war,  but  because  it  had  under 
taken  by  municipal  law  to  effect  non-intercourse  between  the 
loyal  and  disloyal  parts  of  the  country. 

My  friend,  Mr.  Lord,  in  his  printed  brief,  has  made  a 
very  extensive  criticism  on  this  act  in  a  certain  sense,  which, 
I  shall  respectfully  submit  to  the  Court,  a  very  few  consid 
erations  will  render  inapplicable.  I  shall  not  insist,  at 
length,  on  the  meaning  of  this  Act  which  has  been  so  well 
presented  by  the  brief  and  the  argument  of  my  learned  asso 
ciate,  Mr.  Dana.  But  this  is  to  be  seen  on  the  face  of  it, 
that  it  was  not  intended  simply  for  a  special  or  temporary 
purpose,  but  that  Congress,  foreseeing  that  circumstances 
might  at  any  time  arise  which  would  render  it  necessary, 
has  given  authority  to  have  a  custom  house  on  board  ship, 
or  to  close  the  port  by  municipal  authority.  That  has 
nothing  to  do  with  the  use  of  force  in  suppressing  the  rebel 
lion.  The  fifth  section  seems  to  be  the  first  and  earliest  that 
can  be  indicated  as  having  any  special  influence  on  the  war. 
What  is  that?  In  its  nature — I  will  not  repeat  its  terms — 
it  is  an  aid  and  assistance  given  by  municipal  law  to  the 


THE  PRIZE  CASES  279 

military  action  of  the  Government  in  separating  the  loyal 
from  the  disloyal  territory.  But  my  learned  friend  says  that 
that  first  introduces  the  right  to  establish  non-intercourse 
and  thus  furnishes  the  degree  and  consequences  of  non- 
intercourse. 

Let  us  see  how  that  is.  We  will  first  take  it  before  the 
statute  passed,  where  your  military  lines  were  drawn  or 
may  have  been  drawn.  They  were  drawn  from  the  city  of 
Washington,  or  the  city  of  Baltimore,  or  the  shore  of  the 
Chesapeake  across  the  country  to  Missouri.  That  was  a 
purely  military  action  of  the  Government  and  nobody  here 
has  disputed  that  it  is  lawful.  Supposing  that  intercourse 
of  any  kind  is  attempted  to  be  conducted  across  these  mili 
tary  lines,  from  one  side  or  the  other,  does  not  every  person, 
does  not  every  piece  of  property  thus  coming  in  contraven 
tion  of  the  military  line  come  under  the  law  of  war?  Is  it 
not  to  be  kept  out?  Is  it  not  to  be  seized?  Is  not  the  mili 
tary  permission  to  be  what  the  commander-in-chief  indicates 
both  in  regard  to  persons  and  in  regard  to  the  appropriation 
or  destruction  of  property?  Is  this  Act  of  Congress  a  repeal 
of  that  authority?  After  its  passage,  when  the  general 
finds  that  his  lines  are  being  traversed  by  commodities,  by 
vehicles,  by  letters,  by  correspondence,  and  when  he  under 
takes  to  apply  the  power  of  war  to  preserve  his  lines,  is  he 
to  be  met  by  the  suggestion: — "Oh,  I  know  it  is  unlawful, 
but  the  Act  of  Congress  has  fixed  the  measure  of  my  author 
ity  and  the  manner  of  its  exercise,  bringing  it  under  control 
of  the  municipal  law,  and  when  ever  you  show  a  warrant  for 
my  arrest  I  will  yield  to  the  law;  but  unless  you  bring  this 
form  of  legal  process  in  pursuance  of  the  municipal  law,  I 
claim  my  rights  as  a  citizen  and  pursue  my  lawful  business, 
made  unlawful,  only  by  the  statute"  ? 

This  statute  is  in  accordance  with  common  law,  which 
makes  trading  with  the  enemy  a  misdemeanor;  but  does  that 
save  the  ship  of  the  British  merchant  and  its  cargo,  pursuing 


280         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

its  voyage  to  Russia  in  contravention  of  the  non-intercourse 
which  war  produces,  in  the  capture  and  condemnation  of 
prizes  in  the  Court  of  Prize,  sitting  as  a  court  under  the  law 
of  nations?  Not  in  the  least;  and  all  the  pretence  and  appli 
cation  of  these  considerations  to  this  legislation  comes 
utterly  without  support. 

But  the  Act  of  August  6,  1861,  which  in  its  terms  attempts 
a  full  and  thorough  support  of  the  acts  of  the  President  has, 
it  is  said  by  our  learned  friends,  its  vigor  and  operation  only 
in  the  future  and  from  its  date,  and  makes  war  from  that 
date.  But  why  not  for  the  past?  I  submit  to  your  Honors 
that,  on  all  the  cases  and  on  the  principles  of  political  con 
trol  in  the  situations  of  war  and  peace,  and  on  examples  in 
our  own  history,  so  well  presented  to  your  Honors  in  the 
facts  of  General  Taylor's  conduct  in  the  Mexican  war, 
before  the  passage  of  the  Act  of  Congress  declaring  it, 
there  is  nothing  truer,  nothing  simpler  than  that,  when  the 
authoritative  voice  of  the  Government  has  been  presented 
concerning  the  state  of  war,  it  is — at  least,  in  the  absence  of 
some  express  limitation — received  by  the  courts  as  an  inter 
pretation  of  the  true  character  of  the  disturbances  and  hos 
tilities.  Will  anyone  contend,  as  a  lawyer,  that  if  General 
Taylor's  battle  of  Palo  Alto  and  Resaca  de  la  Palma  had 
been  replaced  by  naval  engagements  or  had  been  attended 
by  naval  engagements,  or  by  naval  captures  of  the  trade  of 
Mexico,  or  by  the  establishment  of  a  blockade,  as  acts  of 
force  by  the  military  authorities  having  the  power  of  the 
country  for  that  purpose  reposed  in  them,  the  captures 
would  have  been  discharged  and  restored  because  they  were 
made  after  Mexico  had  commenced  war  and  while  we  were 
resisting  it  by  land  and  by  sea,  but  yet  anterior  to  the  Act 
of  Congress?  Why,  the  proposition,  within  any  rules  of 
public  law  or  any  authority,  is  absurd.  Now  this  is  all — 
this  time — that  is  so  zealously  sought  to  be  saved  for  the 
protection  of  these  particular  vessels,  between  the  27th  of 


THE  PRIZE  CASES 


281 


April  and  the  time  when  Congress  thus  gave  the  voice  of 
the  nation,  interpreting,  not  enacting,  the  state  of  war. 
The  proposition  goes  no  further,  and  it  is  met  by  every 
authority  and  by  every  principle  of  public  law. 

My  learned  friends  do  not  explain  themselves  exactly  as 
to  what  kind  of  a  blockade,  and  what  consequences,  in  mari 
time  or  naval  power,  this  measure  of  the  Government  could 
rightly  have.  Our  learned  friend,  Mr.  Edwards,  who  repre 
sented  the  neutral  or  British  position,  our  friend  Mr.  Black 
and  our  friend  Mr.  Lord,  do  not,  any  of  them,  seem  to  ques 
tion  the  right  of  blockading  the  ports.  That  is  to  say,  they 
justify  the  Government  in  blockading  the  ports,  without 
any  act  of  Congress.  Is  that  a  municipal  regulation? 
Certainly  not.  Is  it  a  war  power  then?  Yes.  But  they 
say  that  there  should  not  have  been  superadded  to  this 
actual  institution  of  blockade  the  sanctions  for  making  it 
operative  and  effective  which  the  law  of  nations  brings. 
What  are  those  sanctions?  Why,  that  any  vessel  preparing, 
any  vessel  designing,  any  vessel  attempting,  a  breach  of 
blockade  is,  at  any  part  of  its  voyage,  liable  to  seizure.  They 
say,  "You  have  a  right  to  keep  vessels  in  front  of  those 
ports,  you  have  a  right  to  stop  any  vessel  going  in,  you  have 
a  right  to  send  her  off,  but  you  cannot  bring  her  into  prize 
condemnation."  But  if  you  cannot  bring  into  prize  con 
demnation  vessels  seeking  to  break  the  blockade,  how  do 
you  make  the  blockade  effectual  and  operative?  You  make 
it  operative,  not  by  right  of  war  but  by  mere  power  or  scuffle 
in  each  case;  and  you  collect  about  your  ports  the  ships  of 
all  nations  which  have  got  that  far  without  fault  and  without 
exposure  of  any  kind.  Well,  if  they  got  that  far  without  risk 
and  without  exposure,  they  will  get  farther  without  risk  and 
without  exposure.  If  your  limited  strength  is  to  send  home 
to  port  vessels  attempting  to  run  the  blockade,  there  to  be 
released,  your  blockade  is  determined  from  the  failure  of  your 
naval  strength.  Or  if  your  right  is  simply  to  set  her  prow 


282        SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

about  at  night  and  she  can  come  back  in  the  morning,  and 
you  repeat  the  game  over  and  over  again,  then  you  have  a 
mere  puerility  of  war. 

What  is  the  power  of  blockade?  What  is  it,  says  Sir  Wm. 
Scott,  but  the  forcible  prevention  of  access  to  ports?  What 
is  the  forcible  prevention  of  access  to  ports?  It  is  like  the 
forcible  prevention  of  anything  prohibited.  It  is  not  mere 
arrest;  but  it  is  arrest  and  detention,  and  infliction  of  conse 
quences,  whatever  come  from  it.  But  my  learned  friend, 
Mr.  Lord,  seeing  that  that  puerility  of  war  would  not  do, 
says,  "Oh,  you  may  have  the  most  terrible  power  of  war; 
you  may  sink  a  ship  attempting  to  violate  the  blockade." 
He  says  that  if  a  vessel  is  bringing  supplies  (and  I  suppose 
he  would  say,  if  she  were  bringing  contraband  of  war)  you 
may  sink  her;  but  the  law  of  nations  is  that,  on  the  high  seas, 
this  execution  of  the  law  of  war  shall  not  be,  and  is  not, 
permitted.  The  proposition  of  the  law  of  nations  is,  these 
seizures  of  commerce,  of  ships  and  their  cargoes,  may  right 
fully  be  made,  but  you  shall  neither  destroy  nor  appropriate, 
on  this  primary  forcible  execution  of  a  right.  You  may,  so 
to  speak,  seize  the  ships  in  the  darkness  and  uncertainty  of 
night,  but  you  shall  not  destroy  them  there,  and  you  shall 
not  appropriate  them  there.  You  shall  keep  them  till  the 
daylight  of  the  prize  court  can  shine  upon  them,  discover 
their  features  and  their  circumstances,  and  show  whether 
their  seizure  is  an  execution  of  the  power  of  war. 

How  does  the  law  of  nations  enforce  that  rule?  Why, 
if  a  belligerent  power  shall  undertake  to  sink  ships  indis 
criminately  on  the  ocean — as  my  learned  friends  say  it  may — 
in  order  to  maintain  its  war  power,  neutral  nations,  the  au 
thorities  of  the  world,  would  intervene  and  say:  "That  is  a 
power  and  right  of  war  which  cannot  be  executed  in  that 
way."  There  is  but  one  case  supposed  in  which  the  bellig 
erent  is  authorized  and  justified,  under  the  law  of  nations 
in  destroying  property — and  that  is  when  the  condition  of 


THE  PRIZE  CASES  283 

the  law  of  nations  that  the  prize  jurisdiction  and  sentence 
shall  follow  is  rendered  practically  impossible  by  the  bellig 
erent  possessing  no  ports.  That  is  the  law  of  nations  which 
keeps  the  Alabama  afloat  and  gives  to  it  execution  and 
appropriation  at  sea,  without  prize  adjudication.  And 
that  is  the  only  way  and  the  only  reason.  How  otherwise 
does  the  law  of  nations  enforce  this  proposition  that  you 
shall  not  only  not  destroy  but  you  shall  not  appropriate? 
Because  by  a  universal  proposition  of  the  law  of  nations,  the 
title  to  property  passes  only  by  prize  adjudication.  If  the 
ship  which  a  belligerent  has  captured  and  sought  to  appro 
priate  should  be  found  anywhere  in  the  world,  it  would 
be  no  title,  to  be  pleaded  in  an  action  of  trover  or  replevin, 
that  the  ship  was  captured  under  the  rights  of  war  by  a  bel 
ligerent  at  war.  Prove  all  that  on  the  part  of  the  defendant 
and  still  the  plaintiff  would  have  a  verdict  and  recover  the 
property.  But  prove  further  that  the  ship  was  captured 
and  brought  in  for  adjudication,  and  produce  the  prize 
sentence,  and  the  defendant  will  have  a  verdict,  whether  the 
capture  was  under  the  laws  of  war  or  not.  It  is  thus 
that  the  law  of  nations,  wise  and  strong,  secures  the  observ 
ance  of  this  rule  as  the  condition  on  which  it  will  permit  the 
exercise  of  belligerent  rights  on  the  open  seas.  It  secures  two 
great  objects — first  preventing  the  destruction  of  property, 
so  that  you  shall  not  strike  it  out  of  the  values  of  the  world, 
so  that  the  corn  and  the  wine,  the  fabrics  of  comfort  and  of 
necessity  that  belong  to  the  world  for  its  use  shall  not  be  sunk 
in  the  bottom  of  the  sea  under  the  claim  of  belligerent  right; 
and  second,  that  neutrals  shall  not  hold  their  position  on 
the  seas,  subject  to  the  discretion,  the  justice,  or  the  good 
faith  of  naval  commanders;  but  that  the  prize  courts  that 
make  records  and  that  bind  their  sovereign,  shall  have  re 
view  of  the  captures. 

Now,  if  the  Court  please,  I  will  look,  but  a  moment,  at 
the  question  of  enemy  property  as  distinct  from  the  rest, 
and  then  I  shall  submit  the  case. 


284        SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

JUDGE  NELSON:  In  connection  with  your  argument  that 
the  President,  under  the  circumstances  in  which  he  was 
placed,  has  the  power,  can  he  grant  Letters  of  Marque  and 
Reprisal? 

MR.  EVARTS:  That  question,  if  your  Honors  please,  falls, 
I  suppose,  properly  under  the  same  considerations  (and  your 
Honor's  question  as  well  as  my  answer  is  equally  applicable 
to  a  foreign  war  commenced  by  invasion)  and  under  the  same 
principles  on  which  this  Court  held  that,  by  the  law  of  na 
tions,  the  mere  existence  of  war,  without  the  exercise  of 
legislative  authority,  did  not  operate  an  appropriation  or  a 
right  of  confiscation  of  goods  on  land,  never  doubting,  how 
ever,  that  it  did  operate  a  right  of  appropriation  and  of 
prize  condemnation  of  goods  at  sea.  Now,  whether  the 
President  of  the  United  States  having  a  right  to  use  the  en 
tire  militia  of  the  nation,  having  a  right  to  use  the  entire 
navy  of  the  nation,  having  a  right  to  use  the  entire  army  of 
the  nation,  would  also  have  a  right  to  use  the  mercantile 
marine  in  the  form  of  private  ships  of  war  for  the  purpose 
of  prosecution  of  war  must  rest  wholly  on  the  question 
whether  he,  in  the  actual  emergencies  and  needs  which 
the  facts  of  any  given  case  had  thrown  upon  him  for  the 
protection  of  the  Constitution  and  the  Government  and  the 
maintenance  of  the  authority  of  both,  as  of  necessity  was 
obliged  to  recur  to  it.  There  is  not  any  statutory  authority, 
and  there  is  not,  in  any  terms  in  the  Constitution,  any 
authority  given  to  him  except  to  be  commander-in-chief  of 
the  army  and  navy  and  to  be  the  Chief  Executive. 

Now,  my  own  judgment — if  the  Court  will  allow  me  to 
speak  of  what  is  so  unimportant — is  that  when  you  come  to 
the  necessity  of  employing  private  armed  vessels  to  main 
tain  the  authority  of  the  Government,  whoever  has  the 
executive  power  of  the  Government  in  that  emergency  can 
issue  those  Letters  of  Marque.  But,  if  your  Honors  please, 
that  question  can  never  arise,  except  in  a  prize  court  and  as 


THE  PRIZE  CASES  285 

toward  neutral  nations.  It  never  can  become  a  question, 
when  the  authority  is  exercised  in  conformity  with  the  in 
terior  structure  by  which  the  departments  of  the  Government 
and  the  fabric  of  public  liberty  and  safety  are  to  be  main 
tained.  I  know  of  no  statute,  or  of  no  express  clause  of  the 
Constitution  which,  in  its  necessary  terms,  covers  this  in 
stitution;  but  the  whole  armed  power  of  the  country  falls 
within  his  powers  as  commander-in-chief,  to  be  employed 
by  him  for  the  purposes  authorized  by  the  Constitution. 

I  understood  your  Honor  to  ask  the  question  in  reference 
to  the  existing  state  of  the  law,  and  not  under  any  statute  of 
law  which  should  authorize,  in  case  of  emergency,  of  invas- 
sion,  or  of  insurrection  or  of  rebellion,  a  recourse  to  the 
system  of  privateering. 

JUDGE  NELSON:  I  only  asked  in  reference  to  existing  Acts 
of  Congress,  such  as  existed  at  the  time. 

MB.  EVARTS:  If  there  was  such  a  general  law,  of  course 
my  argument  that  the  President  could  use  private  armed 
vessels  according  to  the  law  of  nations  would  be  applicable. 

I  come  now  from  that  question  of  maritime  capture,  and 
to  the  proposition  that  a  prize  sentence  is  judicial,  in  sep 
arate  authority  and  effect  from  the  act  of  capture.  I  do 
not  know  where  my  learned  friends,  who  seemed  to  think 
that  some  of  these  acts  by  the  Government  might  be  war 
ranted  at  sea,  find  any  authority  for  any  of  them  unless  they 
can  find  authority  for  all  of  them  to  the  extent  that  the  Gov 
ernment  claims.  Before,  then,  the  Act  of  July  13th,  if 
the  war  power  of  the  Government  was  not  in  existence,  and  if 
the  prize  judicature  did  not  exist,  for  aught  I  can  see,  a  Bos 
ton  merchant  could  fit  out  a  ship  or  vessel  for  the  purpose  of 
carrying  contraband  of  war  in  the  shape  of  consignments  to 
Charleston,  to  loyal  merchants  in  Charleston.  I  will  keep 
him  clear  of  the  doctrine  of  constructive  treason  by  carrying 
contraband  of  war  to  rebels  in  arms.  But  I  do  not  see  why, 
in  good  faith  under  a  previous  order  from  loyal  citizens  of 


286         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

Charleston,  a  Boston  merchant  could  not  send  down  a  cargo 
of  gunpowder  and  rifles,  unless  the  power  of  war  of  the  Gov 
ernment  exposed  them  to  the  application  of  the  military,  the 
naval,  and  the  effective  power  of  the  Government  to  seize  it. 
There  is  not  any  libel  or  information  that  could  be  filed  in  the 
district  court  or  anywhere  else,  under  any  statute  that  can  be 
found  that  could  stop  it.  There  is  nothing  but  the  power 
of  war  to  suppress  it.  My  learned  friend,  Mr.  Lord,  would 
meet  that  case  in  this  way:  "You  can  sink  that  ship  at  sea, 
but  you  cannot  bring  it  in  and  condemn  it  as  a  prize." 

Now,  what  is  maritime  capture  in  its  essence,  and  in  the 
mere  quality  of  enemy  property,  as  distinguished  from 
capture  for  contraband  or  breach  of  blockade?  In  the 
first  place  I  ask  your  Honors'  attention  to  the  well-settled 
proposition  of  prize  law,  and  that  is,  that  the  prize  adjudi 
cation  always  proceeds  on  the  ground  that  the  thing  con 
demned  is  enemy  property,  although  it  be  condemned,  being 
in  fact  neutral  property,  for  breach  of  blockade  or  for  carry 
ing  contraband.  The  proposition  is  this:  that  a  belliger 
ent  has  no  right  except  against  his  belligerent— that  is  the 
beginning  of  it— but  that  neutrals,  by  contravening  the  law 
of  nations  and  not  respecting  belligerent  rights  may  get 
themselves  into  the  attitude  of  being,  pro  hac  vice,  enemies 
from  their  conduct.  The  two  main  features  are,  carrying 
contraband  which  exposes  vessels  to  capture  anywhere  on 
the  sea,  and  attempting  to  break  the  blockade  which  ex 
poses  them  to  capture  at  any  time  that  the  voyage  is  medi 
tated,  or  the  voyage  is  undertaken.  But  what  right  have 
we  to  take  them?  Because  they  have  affected  themselves 
with  the  quality  of  enemy  pro  hac  vice;  and  such  is  the  logic 
and  such  the  language  of  the  prize  authorities.  There  never 
was  a  law  authorizing  maritime  capture  that  ever  auth 
orized  anything  but  the  capture  of  enemy  ships  and  enemy 
property.  There  never  was  an  act  that  authorized  the  cap 
ture  of  neutral  ships  for  breaking  blockade.  The  prize 


THE  PRIZE  CASES  287 

Act,  the  capture  law,  all  say,  "seize  the  enemy's  ships  and 
goods."  Well,  we  always  seize  neutrals.  Therefore  it  is 
in  the  quality  of  enemy  property  that  neutral  vessels  are  to 
be  condemned  for  breach  of  blockade  and  for  carrying  con 
traband;  and,  so  far  from  breaking  blockade  and  contraband 
standing  better  than  direct  enemy  property  in  these  contro 
versies,  there  is  not  a  footing  to  go  against  neutrals  for  con 
traband  or  for  the  breach  of  blockade,  unless  the  doctrine 
of  enemy  property  is  established.  Will  neutral  nations 
submit,  as  they  all  have  submitted,  to  a  law  of  nations  which 
prevents  them  from  carrying  on  commerce  between  block 
aded  ports  and  their  own  countries,  if  our  ships  are  permitted 
to  carry  on  such  commerce  from  our  ports?  What  was  the 
case  of  the  Francisca?  The  Russian  blockade  was  excluded, 
as  against  neutrals,  because  England  had  reserved  the  right 
to  carry  in  commerce  of  her  own,  for  her  own  convenience, 
for  a  period  of  ninety  days.  The  neutrals  submit  wholly 
on  the  ground  that  you  have  stopped  commercial  intercourse 
of  all  kinds  by  the  laws  of  war.  They  say,  "you  had  a 
right  to  do  it  toward  your  enemy.  If  we  undertake  to  run 
against  you,  we  become  your  enemy  pro  hac  vice  and  fall 
within  the  same  condemnation.  But  if  you  have  no  condem 
nation  for  .the  enemy,  you  can  have  none  for  us."  If  a 
Boston  ship  can  carry  goods  into  Charleston,  then  an  Eng 
lish  ship  can.  And  if  an  English  ship  can  be  seized  for  doing 
it,  and  sentenced,  a  Boston  ship  cannot  be  seized  for  doing 
it  and  released.  This  doctrine,  that  you  may  take  the 
Boston  ship  and  turn  it  aside,  and  take  the  English  ship  and 
confiscate  it,  is  a  doctrine  which  the  neutral  powers  would 
not  submit  to. 

Now,  this  is  the  proposition  from  Halleck's  international 
law,  page  726 : 

"As  a  general  rule  all  property  belonging  to  the  enemy 
found  afloat  on  the  high  seas,  and  all  property  now  afloat, 
belonging  to  subjects  of  neutrals  or  allies  who  conduct 


288        SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

themselves  as  belligerents,  may  be  lawfully  captured.  All 
property  condemned  is,  by  fiction  or  rather  by  intendment 
of  law,  the  property  of  enemies — that  is,  of  persons  to  be  so 
considered  in  the  particular  transaction.  Hence  prize  acts 
and  laws  of  capture  with  reference  to  enemies'  property,  are 
construed  to  include  that  of  subjects  of  neutrals  and  allies 
who,  in  the  particular  transaction,  are  to  be  regarded  as 


enemies." 


Now,  about  breach  of  blockade.  It  is  not  any  fault  in  an 
enemy  to  run  a  blockade.  An  enemy's  running  a  blockade 
does  not  expose  him  to  confiscation.  He,  as  an  enemy,  is 
exposed  to  confiscation  because  he  is  an  enemy,  whenever 
you  may  catch  him  or  how,  but  not  because  he  has  run  the 
blockade.  This  is  the  decision  in  the  case  of  the  Francisca. 
An  enemy's  ship  commits  no  offence  against  the  law  of  na 
tions  by  attempting  to  elude  a  hostile  squadron  and  enter  a 
blockaded  port.  She  has  a  perfect  right  to  do  so  if  she  can. 
She  is  already  subject  to  seizure  in  another  character,  but 
she  does  not  incur  any  penalty  by  breach  of  blockade. 

Therefore,  you  see  that,  from  the  one  hand  and  the  other, 
these  neutrals,  who,  my  learned  friend  Mr.  Lord  thinks,  must 
have  to  take  care  of  themselves  while  he  is  saving  the  actual 
enemy,  come  into  the  matter  only  because  they  turn  them 
selves  into  enemies  by  doing  things  which  are  offences  for 
them.  The  enemy  is  an  enemy  in  his  own  quality,  not  from 
any  offence  he  commits,  but  of  his  predicament — if  I  may 
use  a  phrase  to  which  some  objection  is  made. 

Now,  it  is  said  that  there  are  various  obligations,  in  justice, 
in  duty,  and  in  consistency  with  the  principles  of  jurispru 
dence,  in  touching  the  commerce,  in  the  shape  of  the  ships 
and  cargoes,  of  private  owners  who  are  loyal  citizens  and 
yet  are  residents  of  a  part  of  the  rebel  territory.  Now,  let 
us  understand  that  matter.  It  may  or  may  not  have  been  a 
necessary  or  useful  thing  for  this  Government,  in  under 
taking  to  suppress  the  rebellion,  to  seize  the  Crenshaw,  the 


THE  PRIZE  CASES  289 

Hiawatha,  the  Brigida  or  the  Amy  Warwick.  It  may  be 
quite  true  that  the  rebellion  might  be  suppressed  without 
doing  that.  But  that  it  was  a  wise  thing  to  attempt  to  cut 
off  the  inexhaustible  supplies  from  the  rebellion  which  it 
would  require  from  foreign  nations,  by  drawing  a  line  of 
blockade  and  suppressing  the  commerce  of  neutrals  and  of 
the  rebellion,  nobody  can  doubt.  That  it  was  just  as  com 
petent  as  it  was  to  draw  a  line  across  the  country — for  there 
was  no  municipal  law  for  that — there  can  be  no  doubt. 
But  the  truth  is  this,  if  the  Court  please: — You  do  not  war 
against  private  property  on  sea  any  more  than  you  do  on 
land,  in  the  true  theory  of  the  matter.  You  do  undertake  to 
reduce  and  destroy  the  commerce  which  belongs  to  the  ene 
my's  country,  as  a  part  of  its  growth,  its  strength,  its  sup 
plies,  its  energies,  its  revenues,  its  resources.  That  is  what 
you  undertake  to  do.  Now,  every  ship  is  the  ship  of  some 
private  owner;  but  you  cannot  touch  the  commerce  of  the 
enemy  as  such,  unless  you  touch  the  particular  ships  which 
belong  to  private  persons.  When  you  invade  an  enemy's 
country  you  advance  through  his  territory  to  reduce  his 
strength  and  cut  off  his  resources;  but  every  rood  of  land 
which  you  occupy  by  your  military  movements  is  private 
property.  You  do  not  confine  yourself  to  seizing  the  public 
places  in  the  cities  or  the  public  highways  in  the  country. 
You  cannot  encroach  upon  and  occupy  and  reduce  the  terri 
torial  strength  of  the  enemy  except  by  encroaching  upon  and 
possessing  and  appropriating  and  applying,  and  using,  ac 
cording  to  the  laws  of  war,  the  acres  which  belong  to  particu 
lar  owners. 

Now,  the  law  of  war,  when  you  occupy  private  property 
on  land,  is  one  thing,  and  the  law  of  war  when  you  capture 
property  at  sea  is  another.  They  are  both  laws  of  war. 
They  have  their  own  reasons.  It  is  not  necessary  to  en 
lighten  or  defend  them.  The  general  proposition  in  regard 
to  the  land  is  that  you  keep  it  for  military  purposes,  in  the 

21 


290        SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

largest  sense,  and  that  you  can  appropriate  it  so  as  to  have 
the  usufruct  of  it  during  the  possession  which  war  gives  you. 
But  what  is  the  law  of  nations  and  of  war  in  regard  to  ships? 
It  is  this:  The  only  way  they  can  be  taken  from  the  enemy's 
commerce  is,  either  to  destroy  them  at  sea  or  elsewhere,  or 
to  preserve  them  as  part  of  the  property  of  the  world  and 
to  change  the  title  from  the  enemy  to  yourself.  You  do  not 
pile  up  his  ships  in  your  harbors  to  be  restored  to  him  after 
the  war  by  the  jus  post  dominium.  You  do  not  destroy 
them.  That  is  not  permitted,  from  the  danger  to  neutral 
property  by  the  execution  without  examination. 

You  are  then  proceeding  here  to  suppress  the  enemy's 
commerce.  Was  that  a  judicious  object  for  the  President 
and  the  political  authorities  of  the  country  to  effect?  We 
will  not  debate  that  here.  Here  is  not  the  place  to  debate  it. 
There  was  the  place  to  debate  it.  Could  any  man  in  his 
senses  suppose  that  in  execution  of  these  powers  of  war,  out  of 
a  commerce  so  limited  in  the  possession  of  ships  on  the  part  of 
the  South  as  we  know  it  to  be,  there  would  have  been  brought 
with  the  Registers  of  the  Prize  Courts  of  the  country  forty 
million  dollars'  worth  of  property,  almost  all  of  it,  I  agree, 
neutral  property,  British,  French  and  Mexican  property,  and 
not  even  a  cry  of  faultfinding  from  these  great  nations? 

Now,  if  we  have  found  that  the  application  of  the  law  of 
war  is  submitted  to  by  neutral  nations,  is  recognized,  and 
has,  without  recourse  and  without  restitution,  brought  into 
our  registers  this  quantity  of  commerce,  what  would  the 
commerce  have  been  which  would  have  flowed  in  from  all 
parts  of  the  earth,  feeding  the  failing  revenues  and  exhausted 
resources  of  this  rebellion,  if  we  had  not  applied  the  law  of 
war?  Will  commerce  keep  away  under  my  learned  friends' 
peace  blockade  and  monitor  malis  imposuit  doctrine  of 
stopping  the  trade  and  returning  the  ships?  Not  a  boat  of 
this  forty  million  dollars'  worth  would  have  come  within  the 
clutches  of  your  war  power,  and  the  whole  strength  and  aid 


THE  PRIZE  CASES  291 

of  foreign  nations  would  have  supplied  this  rebellion  not  only 
with  the  resources  which  their  commerce  gave  them,  but 
with  the  alliances  and  the  war  which  must  have  sprung  up 
between  this  country  and  them. 

Now,  if  the  Court  please,  we  do  not  sit  in  judgment  on  the 
President  and  his  councils.  We  show  you  that  he  has  at 
tempted  and  undertaken  to  do  this.  We  show  you  the 
circumstances  under  which  it  has  been  done,  and  we  show 
you  the  measure  of  its  practical  consequences. 

Now,  I  agree  that  when  my  learned  friend  exclaims 
"Shall  we  not  only  be  asked  to  concede  these  proceedings 
against  loyal  citizens  in  the  Southern  States  but  to  say  that 
it  is  just  for  a  parental  Government  to  execute  this  seques 
tration  of  the  hard  earnings  of  an  honest  and  loyal  citizen 
allured  under  the  stress  of  a  rebellion  which  he  opposes 
with  his  will?"  my  learned  friend  commits  the  common 
error  of  confounding  what  is  lawful  and  just  as  an  end 
with  what  is  lawful  and  just  as  a  means.  Shall  I  be  told 
that  it  is  the  dictate  of  parental  love  to  mutilate  the  warm, 
living  body  of  his  child?  As  an  end,  nothing  more  cruel 
and  more  wicked.  But  if  it  be  the  surgeon's  knife  which 
amputates  the  limb,  to  save  the  child's  life,  then,  as  a  means, 
it  is  not  only  allowable,  but  it  is  the  duty  of  the  parent  thus 
to  apply  the  infliction.  Nothing  so  bad  as  to  confiscate  the 
Crenshaw,  the  Hiawatha,  or  whatever  ship  of  neutral  or  of 
loyal  citizen,  as  an  end.  But  as  a  means  of  carrying  the 
protection  of  this  Government  to  all  the  property,  not  only 
of  these  individuals  there  resident,  but  of  all  the  loyal  people 
of  the  South,  and  of  saving  from  the  madness  of  rebellion 
the  rebels  themselves,  we  are  not,  under  the  generalities  of 
war,  to  be  distracted  from  our  purpose  and  duty  by  a  shudder 
at  the  blood  which  trickles  from  the  surgeon's  knife. 

Now  this  difficulty  has  been  noticed  in  all  similar  contro 
versies.  When  our  revolutionary  ancestors  issued  their 
resolution  for  maritime  capture,  they  deprecated  on  the 


292         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

face  of  it  that  it  would  bear  hard  on  the  subjects  of  England 
who  were  their  friends,  and  they  begged  them  to  understand 
that  it  came  from  the  generalities  of  war.  When  the  British 
people  undertook  their  movement,  and  the  Crown  of  Eng 
land  suppressed  the  trade  of  these  colonies,  Lord  Rocking- 
ham  and  other  opponents  protested  against  the  general 
proceedings  which  confounded  loyal  subjects  in  America 
with  those  who  were  rebellious.  But  as  great  an  authority 
as  Lord  Mansfield  defended  it,  and  on  its  true  reason.  He 
said:  "It  is  the  case  put  by  the  Swedish  general,  Gustavus 
Adolphus.  'My  lads,'  said  he,  'do  you  see  those  men  yonder? 
If  you  do  not  kill  them  they  will  kill  you.'" 

Is  there  any  deeper  or  more  solemn  moment  of  duty  than 
that?  And  shall  a  parental  Government,  which  never 
inflicted  injury  in  peace,  be  accused  of  cruelty — not  against 
men,  for,  my  learned  friend  says,  we  may  shoot  them  all, 
not  against  the  fixed  property  down  South,  for  we  may  burn 
it  all — he  says — not  against  their  ships,  for  we  may  sink  them 
all — but  the  prodigious  cruelty  of  changing  property  in  to 
bacco  and  cigars?  Why,  my  learned  friend  strips  himself 
and  this  contest,  of  the  laws  of  war  which  are  its  amenities, 
and  must  choose  between  the  alternative  of  waging  a  feeble 
war  or  the  alternative  of  waging  a  barbarous  and  cruel  war, 
bellum  nefandum.  He  vibrates  between  one  and  the  other. 
If  he  had  been  brought  into  the  councils  of  the  Government 
he  undoubtedly,  in  that  situation  and  capacity,  would  have 
approved  that,  according  to  circumstances  and  means,  the 
measures  of  the  Government  should  be  taken. 

Now,  if  the  Court  please,  we  on  the  whole  respectfully  sub 
mit  that  the  United  States,  a  sovereign  nation,  prosecuting 
its  right  by  force  to  suppress  a  domestic  rebellion  which  uses 
the  array  and  power  of  war  against  it,  may  rightfully  exert 
all  the  powers  and  methods  of  war  which  the  resources  of 
its  territory  and  its  population  furnish;  that  the  Government, 
in  doing  this,  had  set  on  foot  and  was  maintaining  a  maritime 


THE  PRIZE  CASES  293 

blockade  according  to  the  law  of  nations;  that  in  the  prose 
cution  of  that  right  these  captures  were  made,  and  the  adjudi 
cation  of  the  vessels  and  cargoes  was  made  in  the  court 
below;  that  these  measures  were  within  the  competency  of 
the  Government  as  the  force  of  war;  and  that  the  sentences 
are  conformed  to  that  authority. 

And  now,  if  the  Court  please,  this  closes  the  case  of  the 
Crenshaw  on  the  part  of  the  Government,  and  with  it  the 
discussion  of  the  important  questions,  juridical,  political, 
governmental,  and  international,  which  have  so  long  occu 
pied  the  attention  of  the  Court.  As  viewed  by  the  Govern 
ment,  the  inquiry  as  a  judicial  one  is  limited  to  the  single 
topic  of  prize  or  no  prize  as  presented  on  the  record  of  each 
particular  case  and,  behind  that,  to  the  single  further  ques 
tion  whether  the  political  authorities  of  the  Government,  in 
making  these  captures,  were  executing  the  powers  of  war 
on  reasons  of  duty  and  necessity  sufficient  for  itself.  On 
behalf  of  the  claimants,  the  view  presented  is  this,  that  this 
nation,  this  Government,  is  put  to  plead  at  this  bar  for  the 
right  and  the  power  to  use  the  full  measure  of  its  strength  to 
uphold  the  Constitution  and  to  preserve  its  existence.  No 
other  Government,  no  other  nation,  ever  urged  such  a  plea 
in  any  presence  less  august  than  of  the  assembly  of  the  na 
tions,  before  the  Judge  and  lawgiver  of  all  the  earth,  magister 
et  imperator  omnium,  Deus,  in  the  solemn  arbitrament  of 
war.  If  this  momentous  issue  be  really  before  you,  it  is 
the  greatest  question  ever  submitted  to  human  hearing; 
and  its  very  statement  shows  that  perils  limitless  and  inestim 
able  hang  upon  your  judgment,  for  if,  in  truth,  the  law  of 
this  Government  is  at  variance  with  its  power,  in  the  very 
agony  of  this  great  struggle  to  preserve  its  existence,  its 
fate  can  be  neither  uncertain  nor  remote.  And  who  will 
wish  to  survive  it? 

If  the  Court  please,  to  your  abundant  learning,  to  your 
wide  judicial  experience,  to  your  comprehensive  wisdom, 


294        SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

to  the  intimate  and  all-pervading  sense  of  nationality,  to 
your  perpetual  justice,  your  all-compelling  duty,  your  all- 
inspiring  loyalty,  this  question  of  the  welfare,  the  safety, 
the  permanence  of  the  Republic,  of  which  this  Court  is  the 
grace  and  the  defence,  may  well  be  committed. 


IV 

ARGUMENT  IN  THE  SUPREME  COURT  OF  THE 
UNITED  STATES  IN  CHURCHILL  AGAINST 
THE  CITY  OF  UTICA 

TAXATION  BY  STATE  OF  THE  STOCK  OF 
NATIONAL  BANKS 

NOTE 

The  history  of  legislation  and  judicial  decisions  affecting  the 
question  of  taxation  of  banks  (both  State  and  National)  prior  to 
the  argument  of  this  and  similar  cases  is  briefly  as  follows :' 

In  1863,  Congress  passed  an  Act,  providing  for  the  organization 
of  banks  under  the  Federal  authority  and  control.  This  Act  was 
superseded  in  1864,  by  an  Act  passed  in  June  of  that  year,  which 
contained  additional  provisions  of  material  importance  to  the 
questions  raised  in  the  various  bank  tax  cases.  Before  the  passage 
of  either  of  these  National  Bank  Acts,  Congress  had  enacted, 
February,  1862,  that  the  United  States  stock  and  bonds,  whether 
held  by  individuals  or  corporations,  should  be  exempt  from  taxa 
tion  by  or  under  State  authority.  This  enactment  was  little  more 
than  legislative  expression  of  previous  judicial  interpretation  and 
decision  by  the  Supreme  Court  in  the  leading  case  of  McCuttoch 
vs.  Maryland  and  cognate  cases,  and  of  the  doctrines  there  laid 
down  by  Chief  Justice  Marshall,  asserting  the  supremacy  of  the 
powers  of  the  General  Government  under  the  Constitution  and 
freedom  of  the  National  credit  from  State  interference  or  impair 
ment. 

In  February,  1863,  two  cases  came  before  the  Supreme  Court 
involving  the  question  whether  the  Tax  Commissioners  of  New 
York  City  could  lawfully  impose  a  tax  upon  that  part  of  the  prop 
erty  of  banks,  organized  under  State  authority  (State  Banks)  that 
consisted  of  United  States  securities  (People  ex  rel  Bank  of  Com 
merce  vs.  Commissioners  of  Taxes,  2  Black,  620  and  People  ex  rel 
the  Bank  of  the  Commonwealth  vs.  Commissioners  of  Taxes,  2  Black 
635).  In  the  Bank  of  Commerce  case  the  New  York  Court  of 

295 


296         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

Appeals  had  made  a  distinction  between  those  United  States 
securities  that  had  been  acquired  by  the  bank  prior  to  the  Act  of 
Congress  of  February,  1862,  above  referred  to,  and  those  acquired 
since  the  passage  of  that  Act,  holding  that  by  force  of  that  Act 
United  States  Securities  acquired  since  its  passage  were  exempt, 
but  otherwise  not.  The  Supreme  Court  rendered  its  decision 
March  10, 1863,  re  versing  the  New  York  Courts  and  holding,  on  the 
doctrines  of  McCulloch  vs.  Maryland,  that  all  United  States  securi 
ties  owned  as  the  property  of  the  banks  were  exempt  from  taxation 
by  the  State  and  should  be  deducted  from  the  aggregate  property 
of  the  banks,  in  arriving  at  the  property  lawfully  taxable  under 
State  authority.  Under  the  law  of  New  York  as  it  then  stood  the 
method  of  subjecting  corporations  to  taxation  provided  that  the 
capital  stock  of  every  Company  "shall  be  assessed  at  its  actual 
value,  and  taxed  in  the  same  manner  as  the  other  personal  and  real 
estate  of  the  county." 

Immediately  upon  the  announcement  of  these  decisions  and,  no 
doubt,  as  a  direct  consequence,  the  New  York  Legislature  passed 
an  Act  varying  the  method  of  taxing  Banking  Associations  and 
provided  that  "All  banks,  banking  associations,  etc.,  shall  be  liable 
to  taxation  on  a  valuation  equal  to  the  amount  of  their  capital  stock 
paid  in,  or  secured  to  be  paid  in  and  their  surplus  earnings  etc.,  in 
the  manner  now  provided  by  law."  It  was  supposed  by  the  legis 
lators  that  they  had  thus  found  a  method  of  accomplishing  much 
the  same  result,  that  would  not  be  obnoxious  to  the  Supreme 
Court  decisions.  As  by  this  method  no  examination  and  appraisal 
of  the  actual  assets  of  banks  need  be  made  to  arrive  at  a  basis  of 
taxation,  it  might  be  construed  as  not  to  impose  a  tax  upon  those 
assets.  But  the  United  States  Supreme  Court  in  the  Bank  Tax 
Case  (2  Wallace  200),  which  was  argued  in  January,  1865,  disposed 
of  this  legislation  of  New  York  as  being  equally  repugnant  as  the 
former,  holding  that  taxation  on  a  valuation  equal  to  the  amount 
of  capital  stock  paid  in  was  taxation  of  the  property  in  which  the 
capital  stock  was  invested,  and  that  in  so  far  as  that  property  con 
sisted  of  United  States  securities,  the  attempt  to  impose  a  tax  by 
the  State  Law  was  unconstitutional  and  void,  again  reversing  the 
New  York  Court  of  Appeals. 

But  the  efforts  of  the  State  to  bring  within  the  scope  and  exer- 


BANK  TAX  CASE  297 

cise  of  its  taxing  power  the  large  amount  of  property  invested  in 
the  banks,  though  the  investment  itself  was  thus  protected  from 
any  direct  imposition  by  State  authority,  soon  found  an  indirect 
means  of  accomplishing  substantially  the  result  which,  through 
direct  interference  by  the  State,  The  Federal  Constitution  had 
prohibited. 

The  National  Bank  Act  of  June,  1864,  provided  for  a  tax  by  the 
Federal  Government  upon  the  circulation  and  deposits  and  then 
proceeded  as  follows:  "Provided,  that  nothing  in  this  Act  shall  be 
construed  to  prevent  all  the  shares  in  any  of  the  said  Associations, 
held  by  any  person  or  body  corporate,  from  being  included  in  the 
valuation  of  the  personal  property  of  such  person  or  corporation 
in  the  assessment  of  taxes  imposed  by  or  under  State  authority,  at 
the  place  where  such  Bank  is  located  and  not  elsewhere,  but  not  at 
a  greater  rate  than  is  assessed  upon  other  moneyed  capital  in  the 
hands  of  individual  citizens  of  such  State;  provided,  further,  that 
the  tax  so  imposed  under  the  laws  of  any  state  upon  the  shares  of 
any  of  the  associations  authorized  by  this  Act  shall  not  exceed  the 
rate  imposed  upon  the  shares  in  any  of  the  banks  organized  under 
authority  of  the  state  where  such  association  is  located;  provided, 
also,  that  nothing  in  this  Act  shall  exempt  the  real  estate  of  asso 
ciations  from  either  state,  county  or  municipal  taxes  to  the  same 
extent,  according  to  its  value,  as  other  real  estate  is  taxed." 

Shortly  after  the  decision  of  the  Bank  Tax  Case,  and  in  March 
1865,  the  New  York  legislature  passed  an  Act,  called  an  enabling 
act,  by  which  a  method  was  provided  whereby  banks  organized 
under  state  laws  could  avail  themselves  of  the  provisions  of  the 
National  Bank  Act  and  transact  their  business  under  Federal 
rather  than  State  control.  Under  Section  10  of  this  Act,  "All  the 
shares  in  any  of  the  said  banking  associations  organized  under  the 
Act  of  Congress,  held  by  any  person  or  body  corporate,  shall  be 
included  in  the  valuation  of  the  personal  property  of  such  person 
or  body  corporate  or  corporation,  in  the  assessment  of  taxes  in  the 
town  or  ward  where  such  banking  association  is  located,  and  not 
elsewhere,  whether  the  holder  thereof  reside  in  such  town  or  ward 
or  not;  but  not  at  a  greater  rate  than  is  assessed  upon  other 
moneyed  capital  in  the  hands  of  individuals  of  this  state :  Provided 
that  the  tax  so  imposed  on  such  shares  shall  not  exceed  the  par 


298         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

value  thereof;  and  provided  further  that  the  real  estate  of  such 
associations  shall  be  subject  to  state,  county  or  municipal  taxes  to 
the  same  extent,  according  to  the  value,  as  other  real  estate  is 
taxed." 

Upon  this  state  of  the  law  taxes  were  imposed  on  the  shares  of 
National  Bank  Stock  in  the  hands  of  individuals,  at  a  full  valua 
tion,  though  the  entire  capital  stock  of  the  banks  was  invested  in 
and  represented  by  United  States  securities,  with  the  exception,  of 
course,  of  the  real  estate  owned  by  the  respective  banks.  The 
case  of  Churchill  against  the  City  of  Utica  was  argued  at  the  same 
time  as  Van  Allen  vs.  The  Assessors,  3  Wallace,  573,  and  another 
case,  all  of  which  involved  the  legality  of  the  tax.  The  Court 
decided  that  the  tax  was  illegal,  but  the  decision  was  on  the  ground 
that  the  law  of  New  York  was  repugnant  to  the  Act  of  Congress 
in  that  it  made  no  such  limitation  as  the  Act  of  Congress  required, 
viz.,  "that  the  tax  so  imposed  under  the  laws  of  any  state  upon  the 
shares  of  the  associations  authorized  by  this  Act,  shall  not  exceed 
the  rate  imposed  upon  the  shares  of  any  of  the  banks  organized 
under  the  authority  of  the  State  where  such  association  is  located." 
The  State  banks  were  taxed  on  their  capital  and  under  the  ruling 
of  the  Supreme  Court  if  the  capital  was  in  United  States  securities 
it  was  exempt;  thus  a  discrimination  was  made  against  the  Na 
tional  Banks  and  in  favor  of  the  State  Banks.  But,  as  the  Court 
said:  "This  is  an  unimportant  question  as  the  defect  can  be  reme 
died  by  the  State  Legislature." 

The  important  question  discussed  in  the  argument  and  in  the 
opinion  of  the  Court  and  in  the  dissenting  opinion,  was  whether  the 
tax  on  the  shares  was  not  in  effect  a  tax  on  the  capital  of  the  bank 
and,  therefore,  under  prior  decisions,  so  far  as  the  capital  of  the 
bank  was  invested  in  United  States  securities,  invalid.  While  this 
discussion  was  not  necessary  for  the  decision  of  the  particular  cases 
before  the  Court  and  in  that  sense  was  extra  judicial,  still  the 
Court  intended  by  this  decision  to  settle  this  important  point. 
The  cases  were  argued  at  great  length  on  January  31,  February 
1,  2  and  5,  1866.  Associated  with  Mr.  Evarts  on  the  argument 
were  C.  B.  Sedgwick,  John  H.  Reynolds  and  Lyman  Tremaine. 
They  were  opposed  by  Francis  Kernan  and  Amasa  J.  Parker. 
The  Court  decided,  Mr.  Justice  Nelson  delivering  the  opinion,  that 


BANK  TAX  CASE 

a  tax  upon  the  shares  of  National  Bank  Stock  was  not  repugnant 
to  the  constitutional  exemption.  From  this  decision  the  Chief 
Justice  and  Justices  Swayne  and  Wayne  dissented  in  an  opinion 
by  the  Chief  Justice. 

In  the  face  of  this  opinion  of  the  Court,  however,  Mr.  Evarts, 
in  a  professional  opinion,  advised  the  submission  of  the  question 
to  the  Supreme  Court  again  in  cases  where  it  would  be  essential  to 
the  decision  to  pass  on  the  question.  He  expressed  great  confidence 
that  the  Court  would  finally  adopt  the  reasoning  of  the  Chief  Jus 
tice  and  modify  the  extra  judicial  dicta  pronounced  by  the  Court  in 
this  case.  In  this  expectation  he  was  disappointed,  for  in  Decem 
ber,  1866,  eleven  cases  came  before  the  Supreme  Court  involving 
this  question  in  the  argument  of  which  Mr.  Evarts  took  part. 
The  Court  treated  the  cases  in  a  somewhat  summary  fashion,  reit 
erating  the  decision  in  Van  Allen  vs.  the  Assessors,  and  Churchill 
vs.  Utica,  and  adhering  to  the  doctrines  there  laid  down.  There 
was  also  the  same  dissentient  vote.  (People  ex  rel  Duer  against 
Commissioners  of  Taxes,  4  Wallace,  244.) 

ARGUMENT 

May  it  please  the  Court:  I  cannot  think  that  the  learned 
counsel,  on  the  one  side  or  the  other,  who  have  addressed 
the  Court  in  this  discussion,  which  it  is  permitted  to  me  now 
to  close,  have  at  all  over-rated  the  importance  of  the  subject 
presented  to  your  Honors.  As  a  pecuniary  interest,  it  is 
probably  as  large  as  ever  came  under  your  cognizance, — larger 
than,  in  the  course  of  jurisprudence,  has  ever  been  submitted 
to  any  other  court, — for,  if  looked  at  only  in  the  measure  of 
an  annual  tax  to  be  laid  by  the  various  States  upon  the  whole 
mass  of  property  of  these  national  banks,  it  comes  to  an 
enormous  value;  and,  regarded  as  a  rule,  not  for  a  year,  but 
for  the  continual  course  of  taxation,  the  proportions  swell  to 
still  larger  dimensions.  So,  too,  in  the  extent  of  the  appli 
cation  of  your  rule  to  be  laid  down  in  this  case,  which,  though 
coming  from  the  State  of  New  York,  yet,  since  that  State  is 
under  the  Constitution  and  under  the  laws  of  the  United 


300         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

States,  must  be  substantially  of  the  same  character  and  have 
the  same  effects  in  all  the  States  of  the  Union,  the  magnitude 
of  all  the  interests  is  again  presented  as  most  serious.  But 
while  I  thus  agree  in  the  gravity  of  the  issues  from  the  pecun 
iary  interests  at  stake,  I  must  think  that  some  of  the  topics, 
insisted  upon  by  our  learned  opponents  as  great  elements  in 
the  importance  of  this  question,  were  misconceived.  The 
question  whether  such  a  great  mass  of  property  should  be 
withdrawn  from  the  funds  accessible  to  the  taxation  of  the 
States,  which  presented  itself  to  the  learned  court  that  de 
cided  this  cause  in  the  State  of  New  York,  so  that,  somewhat 
beyond  the  bounds  of  ordinary  judicial  decorum,  the  learned 
Judge  spoke  of  it  as  "frightful,"  and  which,  in  the  arguments 
of  my  learned  opponents,  has  been  brought  to  your  notice  in 
various  tones  of  alarm  and  lament,  is  really  not  a  topic  for 
insisting  upon  the  importance  of  this  question.  Whatever 
there  is  to  disturb  the  equanimity  of  a  court  in  that  subject 
has  already  been  disposed  of  by  your  Honors  in  the  previous 
decisions,  which  have  withdrawn  absolutely,  and  under  any 
form  of  property  or  ownership,  the  securities  of  the  Federal 
Government  known  as  the  "public  debt."  This  matter  of 
the  three  or  four  hundred  millions  of  bank  stock,  which  weare 
considering,  is  not  the  cause  or  the  occasion  of  the  subtraction 
of  these  funds  from  State  taxation.  It  is  as  investments  in 
the  securities  of  the  Federal  Government  that  these  stocks 
are  presented  to  your  Honors  as  entitled  to  the  immunity 
which  belongs  to  these  securities;  and  it  is  under  decisions  of 
this  Court,  which  have  made  $3,000,000,000  of  Federal 
debt  not  subject  to  State  taxation,  that  this  derangement  of 
the  funds,  of  the  property,  which,  on  one  side  or  the  other, 
is  to  bear  the  burdens  of  our  double  government,  is  affected. 
For  the  like  reason,  there  is  as  little  foundation,  on  an 
accurate  attention  to  the  subject,  for  the  suggestion  of  the 
impropriety  of  the  want  of  uniformity  which  would  be  pro 
duced  among  the  citizens  and  in  respect  to  property,  if  these 


BANK  TAX  CASE  301 

investments,  these  bank  capitals,  these  bank  operations, 
should  be  withdrawn  from  the  whole  support  of  the  State 
Governments  under  which  they  are  protected  in  common 
with  the  whole  mass  of  property  of  the  same  description, — that 
is,  the  mass  of  personal  property, — and  for  the  statement  that 
this  gives  great  magnitude  to  the  interests  presented  to  you, 
as  if  it  were  a  question  whether  this  mass  of  property,  now 
before  you,  should  escape  taxation  or  not.  That  is  not  the 
question.  It  has  been  suggested  to  you  already  by  my 
learned  associates  that,  under  the  taxation  of  the  National 
Government,  as  prescribed  in  the  frame  and  as  a  part  of  the 
bill  creating  these  banks,  they  are  made  to  pay,  in  the  sup 
port  of  our  common  burdens,  a  very  large  measure  of  taxa 
tion,  amounting  to  from  two  and  a  half  to  three  per  cent,  in 
the  average  upon  their  whole  capital,  and  that  they  thus 
pay  from  ten  to  twelve  millions  of  dollars  annually  towards 
the  support  of  the  Federal  Government. 

At  a  time  when  practically  we  paid  no  taxes  to  the  Federal 
Government,  and  the  States  had,  undisturbed,  the  whole 
area  of  the  real  and  personal  property  of  the  citizens  of  the 
United  States  by  which  to  support  their  own  institutions,  a 
subtraction  from  the  State  Governments  of  a  fund  of  taxa 
tion  was  equivalent  to  a  withdrawal  of  it  from  contribution 
to  the  public  burdens  in  any  direct  form.  But  now  that  we 
bear  the  burdens  of  taxation  in  our  property  in  support  of 
both  the  Federal  Government  and  our  State  Governments, 
it  is  apparent  that  the  suggestion,  that  the  withdrawal  of 
property  from  the  legitimate  exercise  of  the  power  of  taxa 
tion  by  the  States  is  relieving  it  from  the  payment  of  taxes, 
no  longer  has  support  in  the  fact.  It  becomes,  therefore,  as 
respects  the  burdens  which  the  citizens  of  the  United  States 
and  the  citizens  of  the  States,  both  being  the  same  persons, 
are  to  bear,  a  question  merely  of  the  prudence,  wisdom,  and 
policy  of  the  adjustment  of  taxes;  for  just  so  far  as  these 
banks  contribute  to  Federal  taxation,  just  so  far  they  relieve 


302         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

all  the  other  property  of  the  citizens  of  the  different  States 
from  their  contributions  to  the  burden  of  Federal  taxation. 
If  it  be  true  that  they  no  longer  are  computed  in  the  mass  of 
property  that  shares  the  burdens  of  State  taxation,  never 
theless  the  citizens  of  the  States,  in  their  other  property, 
feel  the  contribution  of  these  national  banks  to  the  needs  of 
the  National  Government,  just  as  distinctly  and  just  as 
directly  as  they  would,  if  they  contributed  to  the  support  of 
the  State  Governments.  We  are,  therefore,  relieved  from 
both  of  these  elements  of  difficulty  and  these  disturbances  in 
respect  to  the  judgment  of  the  court,  so  loudly  insisted  upon. 
If  the  present  rate  of  taxation  does  not  exact  from  this  kind 
of  property  its  full  share  of  the  burdens  which  it  should  be 
called  upon  to  bear,  then  the  Federal  Government,  the  com 
mon  master  of  all  those  institutions  in  all  portions  of  the 
country,  acting  in  the  general  interest,  but  regarding  also  the 
private  interest  of  the  citizens  of  all  the  States,  may  in 
crease  the  taxation;  so  that,  instead  of  contributing  ten  or 
twelve  millions  of  dollars  as  they  now  do,  by  enlarged  rates 
they  may  be  made  to  contribute  twenty  or  twenty-four 
millions  of  dollars.  That  is  wholly  a  question  of  policy  and 
wisdom  in  the  taxing  power. 

Your  Honors  will  thus  see  that  all  these  considerations 
really  do  not  touch  the  burdens  of  the  citizens,  but  only  the 
question  what,  in  the  complex  system  of  our  government, 
which  now  is  required,  both  in  its  general  control  and  in  its 
separate  State  jurisdiction,  to  demand  taxes  from  the  citi 
zens,  is  the  proper  and  beneficial  adjustment  for  us,  in  our 
capacity  of  citizens  of  the  State  and  citizens  of  the  United 
States. 

Nor  am  I  at  all  disposed  to  dissemble  or  disguise  the  dif 
ficulties  of  the  discussion.  If  they  seem  to  me  less  formidable 
than  the  zeal  and  ability  of  my  learned  opponents,  in  the 
interests  of  their  clients,  have  represented  in  urging  them 
upon  the  Court,  yet  the  respect  due  to  the  unanimous,  ad- 


BANK  TAX  CASE  303 

verse  opinion  of  the  highest  court  of  the  State  of  New  York, 
expressed  in  the  judgment  of  one  of  the  most  distinguished 
Judges  that  the  State  has  produced,  who  now,  by  voluntary 
retirement,  has  closed  one  of  the  most  honorable  judicial 
careers  that  our  history  can  show;  the  great  dictum  (as  it  is 
called)  of  Chief  Justice  Marshall,  and  the  carefully  weighed 
opinion  of  Mr.  Webster,  speaking  always  as  one  having 
authority,  would  admonish  me  of  the  rashness  of  my  judg 
ment.  After  all  the  difficulties,  I  apprehend  that  a  thorough 
examination  of  the  case  will  show,  that,though  the  question 
comes  here  under  the  appellate  jurisdiction  of  this  Court, 
under  the  25th  section  of  the  Judiciary  Act,  and  though  the 
subjects  of  discussion  here,  and  the  decision  appealed  from 
and  to  be  reviewed  here,  do  touch  the  construction  of  the 
Constitution  and  the  laws  of  the  United  States,  and  the 
great  constitutional  conflict  between  the  powers  of  the 
General  Government  on  the  one  hand,  and  the  rights  and 
jurisdiction  of  the  States  on  the  other  hand,  yet  all  these 
questions,  belonging  to  that  high  region  of  jurisprudence, 
have  been  really  disposed  of  by  the  previous  judgments  of 
this  Court;  and  the  limit  of  the  discussion,  which,  on  the 
presentation  of  the  case  and  your  Honors'  scrutiny  of  it, 
will  prove  to  be  needed  for  its  determination,  will  be  found 
to  fall  quite  short  of  this  elevated  region,  and  really  will  turn 
upon  questions  of  corporation  law,  as  to  what  the  relations 
of  shareholders  are,  in  the  just  idea  of  the  constitution  of  a 
corporation,  to  the  property  and  franchise,  which,  as  an 
aggregate,  are  undoubtedly  represented  by  the  corporation 
itself.  Since,  then,  it  turns  upon  this  question,  what  the 
relations  of  shareholders  are  to  the  property  and  franchise  of 
a  corporation,  I  shall  consider  whether  or  not  the  previous 
decisions  of  this  Court  have  disposed  of  the  question  already, 
by  its  adjudications  on  the  capital  and  the  franchises  of  cor 
porations;  or  whether,  not  having  thus  been  absolutely 
covered  by  the  previous  decisions,  the  relation  of  shareholders 


304         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

to  a  corporation  is  such  as  to  require  their  inclusion  within 
the  principles  that  this  Court  has  already  laid  down,  in  re 
gard  to  the  aggregate  property  and  franchise;  or,  if  this  is 
not  the  case,  whether  a  discrimination  can  be  made,  which 
shall  find  a  place  for  it  as  new  and  separate  property  in  the 
hands  of  shareholders,  to  be  unaffected  by  the  rules  estab 
lished  in  reference  to  the  aggregate  property. 

Now,  if  the  Court  please,  I  have  but  a  word  to  say  in 
regard  to  the  particular  circumstances  of  the  case  in  which 
I  especially  speak;  for  the  question  to  be  discussed  in  it  is  the 
same  as  in  the  other  cases,  and  is  substantially  the  same 
question,  I  imagine,  that  must  come  up  from  the  different 
States,  whenever  attempts  shall  be  made  to  exercise  the  right 
of  State  taxation  on  this  subject  matter.  This  Bank  of 
Utica  was  constituted  as  a  National  Bank  under  the  Act 
of  1863,  and  its  capital  was  wholly  invested  in  public 
securities  of  the  United  States  that  were  issued  before 
the  1st  day  of  June,  1864, — a  date  only  important,  since 
it  distinguishes  those  securities  as  being  previous  to  the 
Banking  Act  of  1864, — in  which  latter  Banking  Act,  for 
the  first  time,  appears  the  clause  cited  from  the  41st  section, 
which  gives  a  license  or  permission  for  the  taxation  of  shares. 
Whatever,  then,  there  may  be  in  any  differences  in  this 
respect,  as  has  been  hinted  at  in  the  judgment  of  the  Court 
below,  this  Bank  occupies  the  most  favorable  position;  for 
its  securities  were  taken  by  it,  as  investments,  while  there 
was  the  open  and  general  pledge  of  the  public  faith,  that  they, 
protected  by  the  National  arm,  were  wholly  free  from  State 
taxation.  And  the  bank,  organizing  and  acquiring  these 
securities  under  such  circumstances,  if  there  be  much  for 
judicial  consideration  in  what  has  been  adverted  to  more  or 
less  in  the  argument  (to  wit,  the  question  of  a  breach  of  faith 
in  the  Government,  in  allowing  taxation  by  permission  of 
section  41  of  the  Act  of  1864)  is  within  the  most  favorable 
consideration  in  that  respect.  But,  I  confess,  I  cannot  see 


BANK  TAX  CASE  305 

that  the  correction  of  the  alleged  breach  of  faith  on  the  part 
of  the  Government,  if  it  has  been  shown  in  any  degree,— I 
do  not  think  it  has  been, — could  be  made  by  a  judicial  deter 
mination  of  this  Court.  Undoubtedly  we  do  press  it,  and 
properly,  as  an  argument  of  much  force,  tending  to  the  proper 
construction  of  section  41  and  the  license  there  given,  that, 
in  the  view  contended  for  by  our  learned  opponents,  a  breach 
of  faith  might  be  involved;  whereas,  in  the  construction 
which  we  suppose  it  properly  bears,  no  such  imputation  is 
admissible. 

If  the  Court  please,  this  plaintiff  in  error,  owning  fifty 
shares  in  this  bank,  of  the  par  value  of  five  thousand  dollars, 
has  been  rated  thereon  as  a  tax-payer  under  the  laws  of 
the  State  of  New  York,  and  is  compelled  thus  far,  by  the 
judgment  of  the  Courts  of  our  State,  and,  unless  your 
Honors  shall  reverse  their  decision,  will  be  finally  com 
pelled  to  pay  a  tax,  at  whatever  the  rate  of  taxation 
is  in  the  local  community  where  this  bank  is  placed, 
upon  the  par  value  of  those  shares.  All  the  other  stock 
holders  are  exposed  to  the  same  application  of  law,  and, 
under  this  decision,  the  united  stockholders  are  to  pay  a 
rate  of  taxation  under  the  jurisdiction  of  the  State  upon 
what  is  equivalent,  in  their  shares  taken  together,  to  the 
capital  of  the  bank.  In  other  words,  $200,000  being  the 
capital  of  this  bank — a  National  Bank — and  being  wholly 
invested  in  Federal  securities,  that  capital  is,  by  the  form  of 
assessing  and  collecting  a  due  proportion  of  the  tax  on  it 
from  each  shareholder,  made  to  produce  to  the  State  of  New 
York  precisely  the  same  amount  of  taxation,  as  if  the  same 
rate  had  been  laid  upon  the  capital  of  the  bank,  and  it  is 
made  to  affect  the  actual  beneficial  value  of  the  shares,  and 
the  receipts  and  profits  of  the  shareholders,  precisely  in  the 
same  manner,  and  to  the  same  effect  and  measure,  as  if  the 
tax  had  been  laid  upon  the  aggregate  capital.  I  think,  in 
the  whole  course  of  this  discussion,  your  Honors  have  not 


306         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

heard  from  our  learned  opponents  any  contradiction  of  that 
proposition :  that  this  form  and  manner  of  taxation  produces, 
as  its  fruit  to  the  State,  precisely  the  same  amount,  as  the 
same  rate  of  taxation  upon  the  aggregate  capital  in  the 
hands  of  the  bank;  and  that  it  produces  the  same  effect  in 
diminishing  the  value  of  the  capital  stock,  by  diminishing 
the  profits  of  that  capital  stock,  laid  in  the  form  now  pro 
posed,  that  it  would  produce,  if  it  were  laid  upon  the  aggre 
gate  capital,  and  upon  the  corporation  as  the  taxable  person. 

These  matters  of  fact  being  thus  clearly  ascertained,  free 
from  dispute,  we  need  next  to  look  accurately  and  attentively 
to  what  are  the  premises  concerning  the  taxability  of  the 
corporations  themselves,  having  their  capital  in  such  invest 
ments,  from  which  we  are  to  start  upon  the  only  inquiry  left 
for  discussion  in  this  Court,  whether  the  stock,  as  an  aggre 
gate,  and  the  franchise,  as  a  part  of  the  value  in  the  hands  of 
the  corporation,  and  the  corporation,  as  a  person  subject  to 
taxation,  being  exempt  from  this  tax,  this  rate,  this  payment 
to  the  State  of  New  York,  the  shareholders  are  subject  to 
all  from  which  the  corporation  itself  is  free. 

I  think  that,  on  the  second  page  of  my  brief,  I  have  ac 
curately  stated  the  result  of  the  determinations  of  this 
Court,  both  on  this  topic,  as  it  relates  to  the  investment  in 
United  States  securities,  and  to  the  corporation,  as  a  national 
institution  within  the  protection  of  the  Constitution,  oper 
ating  as  an  agency  and  means  employed  by  the  Government; 
and  I  say  that  it  is  settled  by  adjudged  cases  in  this  Court, 
that  no  tax  can  be  imposed,  by  the  laws  or  authority  of  a 
State,  upon  the  securities  in  which  the  capital  of  this  bank 
was  invested,  nor  upon  any  person  or  corporation  standing 
in  the  relation  of  owner  of  such  securities,  nor  by  any  measure 
of  his  or  its  property  as  including  such  securities.  The 
cases  are  familiar  to  your  Honors,  and  I  will  only  read  a 
word  or  two  from  the  former  bank-tax  case  in  the  Court  of 
Appeals,  to  show  that  the  principle  is  as  thoroughly  recog- 


BANK  TAX  CASE  307 

nized  by  that  Court, — obeying  the  decision  of  this  Court, 
which  has  corrected  its  former  errors, — as  it  is  by  this  Court 
itself.  In  that  case,  which  is  not  reported  as  yet  in  any 
volume  of  our  reports,  but  is  the  case  which  came  up  to  this 
Court,  and  is  reported  here  in  2  Wallace,  Chief  Judge  Denio 
said: 

"It  must  be  considered  a  settled  point,  that  the  power  of 
taxation  residing  in  the  State  Governments  does  not  em 
brace,  as  a  possible  subject,  the  securities  of  the  public  debt 
of  the  United  States." 

Upon  that  clear  recognition  that  the  subject,  the  res,  the 
investment,  was  absolutely  protected  against  State  taxation, 
his  Honor,  giving  the  opinion  of  the  Court  of  Appeals  in 
that  case,  went  on  to  hold  that,  whenever  the  tax  was  laid, 
not  upon  the  capital  of  the  bank  at  its  value  to  be  ascertained 
by  assessors,  but  upon  the  nominal  or  original  capital  of  the 
bank,  it  was  not  a  tax  upon  the  Federal  securities,  although 
the  whole  of  that  capital  was  invested  in  those  securities. 
That  error  this  Court  corrected  by  the  decision  in  2  Wallace; 
and  now,  more  than  ever,  the  Court  of  Appeals  admits  this 
principle,  and  submits  to  that  application  of  the  principle, 
but  has  found  a  means,  in  a  decision  and  opinion  in  these 
cases,  to  say  that,  although  Federal  securities  are  not  a 
possible  subject  of  State  taxation,  yet  that  Federal  securities, 
under  the  form  of  ownership  which  their  relation  to  the 
shareholders  of  a  national  bank  exhibits,  can  be  made  to  pay 
precisely  the  same  tax  that  they  would,  if  they  were  a  possible 
or  real  subject  of  State  taxation. 

The  other  immunity  which  we  claim  here,  and  concerning 
which  it  is  important  to  know  to  what  the  determination,  up 
to  this  point,  of  this  Court  has  brought  us,  is  the  immunity 
of  these  banks  in  capital,  in  operations,  and  in  franchises, 
from  State  taxation,  not  because  of  any  form  of  investment 
of  their  property  in  Federal  securities,  but,  in  the  absence 
of  that  investment,  because  of  their  mere  character  of  Fed- 


308         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

eral  institutions.  What,  from  this  point  of  view,  is  their 
situation  in  regard  to  State  taxation?  Upon  that  point  I 
apprehend  this  is  a  just  postulate,  not  to  be  contested  and 
not  really  contested  by  the  arguments  of  the  learned  counsel : 
— that  it  is  settled  by  adjudged  cases  in  this  Court,  that  this 
Bank,  in  its  corporate  capacity,  is  not  subject  to  State  taxa 
tion  by  the  laws  or  under  the  authority  of  a  State,  upon  its 
franchise,  operations,  or  capital  (aside  from  the  question  of 
investments  in  Federal  securities),  but  that  it  is  wholly 
exempt  from  such  taxation,  by  reason  of  its  relation  to  the 
Federal  Government,  as  an  agency  or  instrument  of  that 
Government  in  the  exercise  of  its  constitutional  power. 
Without  adverting  or  recalling  your  Honors'  attention  to 
the  cases  in  your  own  Court,  insisted  upon  so  frequently  and 
so  familiar  to  you,  I  will,  upon  this  point,  only  call  your 
attention  to  the  complete  recognition  of  this  proposition  by 
the  Court  of  Appeals.  In  the  first  Bank  tax  case — the  one 
which  was  decided  on  appeal  by  this  Court  in  2  Black — a 
case  reported  in  23  New  York  Reports,  Judge  Denio  gives 
this  as  the  clear  judgment  of  that  Court  upon  the  proposition: 

"But  when  it  had  once  been  settled  that  the  bank  was  a 
constitutional  agency  and  instrument  for  the  moneyed  opera 
tions  of  the  Government,  it  followed  necessarily,  as  it  seems 
to  us,  that  it  could  no  more  be  taxed  by  State  authority, 
than  the  Treasury  Department,  the  Mint,  The  Post  Office, 
or  the  Army  or  Navy;  and  it  was  upon  this  ground  that  the 
Maryland  Statute  was  held  to  be  unconstitutional." 

And,  too,  his  Honor,  Judge  Comstock,  in  giving  a  dis 
senting  opinion  in  that  case,  in  which  he  obtained  the 
concurrence  of  this  learned  Court  on  the  appeal  to  it,  made 
these  observations : 

"As  to  all  subjects  over  which  the  taxing  power  of  a  State 
extends,  there  are  no  limitations  dependent  on  the  power  of 
its  exercise.  If  we  admit  the  right  to  tax  this  credit  in  any 
mode  and  to  any  extent,  we  must  admit  it  in  a  different  mode 


BANK  TAX  CASE  309 

and  to  a  greater  extent.  There  is  no  limit  to  the  principle. 
The  acknowledgement  of  the  right  in  any  degree  involves  a 
conflict  between  the  Federal  Union  and  the  parts  of  which  it 
is  composed;  but,  as  the  Union  is  supreme  in  the  exercise  of 
all  its  powers,  including  the  vital  one  of  borrowing  money, 
no  authority  can  be  constitutionally  opposed  to  it,  which 
confines  the  exercise  of  those  powers.  This  is  a  principle 
which  requires  the  absolute  exemption  of  the  National  credit 
from  State  taxation." 

Has  the  last  proposition  that  I  have  mentioned  been  ques 
tioned,  that  this  Bank,  in  its  capital,  in  its  operations  and  its 
franchise,  was  wholly  exempt  from  State  taxation?  Has 
that  been  questioned  in  the  decision  of  the  Court  below,  or  in 
the  arguments  here?  I  must  say  that,  in  the  decision  of 
the  Court  below,  I  do  not  think  it  is  questioned,  although 
there  are  some  observations  that  go  to  support  the  point, 
that  the  decision  with  regard  to  the  United  States  Bank 
stood  upon  surer  grounds,  in  respect  to  the  character  of  that 
institution,  than  the  argument  about  these  National  Banks 
in  respect  to  their  character  could  stand;  but,  nevertheless, 
I  understand  that  learned  Court  to  place  its  decision  wholly 
upon  the  proposition  that  this  tax,  not  being  constitutional 
if  laid  upon  the  capital  of  the  Bank  and  its  franchise  in  bulk, 
by  reason  of  an  exemption  of  both  as  an  accredited  agent  of 
the  Federal  Government  within  its  constitutional  power,  can, 
nevertheless,  be  assessed  upon  the  shareholders.  But  one 
of  the  learned  counsel  who  last  addressed  the  Court  in  favor 
of  the  defendants,  Judge  Parker,  in  his  brief,  and  orally,  has 
somewhat  questioned  the  fact  that  these  Banks,  in  their 
aggregate  and  corporate  interests,  are  exempt  from  State 
taxation.  He  has  presented  an  analysis  of  the  power  of  the 
United  States  Bank  as  we  call  it,  and  the  powers  and  duties 
of  these  banks,  and  has  intimated  that  the  discrimination  is 
wholly  unfavorable  to  the  position  of  these  banks;  yet, 
if  your  Honors  please,  it  can  hardly  come  to  this,  that  he 


310         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

here  contends  that  these  banks  are  not  within  the  exemption 
which  the  principles  laid  down  by  this  Court  extended  to  the 
United  States  Bank;  for  to  say  that  would  be  to  say  that 
these  National  Banks  were  not  constitutional  creations; 
because,  as  Chief  Justice  Marshall  said  in  the  discussions  in 
the  case  of  McCulloch  vs.  The  State  of  Maryland,  if  the  bank 
is  not  one  of  the  means  and  agencies  of  the  Federal  Govern 
ment,  which,  by  mere  force  of  that  relation,  comes  to  be  pro 
tected  from  State  taxation,  then  it  has  no  lawful  existence; 
"for  who,"  says  he,  "can  point  out  the  right  of  the  Govern 
ment  of  the  United  States  to  establish  a  banking  corporation, 
unless  it  be  as  a  means,  an  agency  and  performing  some  of 
the  functions  of  Government  attributed  to  the  National 
authority  by  the  Federal  Constitution?" 

So  I  think  we  may  start  with  this  proposition;  that  these 
banks,  both  in  respect  to  the  investment  and  in  respect  to 
their  corporate  immunities,  are  absolutely  protected  against 
this  very  rating  and  assessment  and  taxation  which  has  been 
enforced  against  the  shareholders.  The  law  of  the  State  of 
New  York,  under  which,  during  the  last  year,  these  taxes 
have  been  laid,  and  under  which  it  is  proposed  to  lay  them 
in  the  future,  to  wit,  the  "  Enabling  Act,"  as  it  is  called,  which 
has  been  placed  before  your  Honors,  assumes  to  levy  taxes 
"on  all  the  shares"  of  the  banks  in  the  assessment  of  taxes 
"in  the  town  or  ward  where  such  banking  association  is 
located  and  not  elsewhere,  whether  the  holder  thereof  reside 
in  such  town  or  ward  or  not";  and  then  it  provides  that,  for 
the  purpose  of  collecting  such  taxes,  it  shall  be  the  duty  of 
every  banking  association,  organized  under  the  Act  of  Con 
gress,  "to  retain  so  much  of  any  dividend  or  dividends,  be 
longing  to  any  shareholders,  as  shall  be  necessary  to  pay  any 
taxes  hereby  authorized."  Under  that  law,  transferring 
taxation  from  the  body  corporate  and  its  aggregate  invest 
ments  to  the  owners  of  proportionate  shares  of  its  corporate 
franchise,  of  its  corporate  investment,  it  has  been  held  by 


BANK  TAX  CASE  311 

the  Court  of  Appeals  that,  notwithstanding  the  principles 
which  exempt  the  bank  and  which  the  Court  of  Appeals 
itself  recognizes,  the  shareholders  can  be  made  to  pay  what 
comes  to  the  same  in  regard  to  the  State,  and  comes  to  the 
same  in  regard  to  their  own  pockets.  This  is  supported  by 
that  Court  upon  one  of  two  grounds  or  perhaps  upon  both: 
first,  by  the  mere  authority  of  the  State,  without  asking 
leave  or  allowance  from  this  Government;  and,  secondly,  by 
the  authority  communicated  or  permitted  by  the  proviso  of 
the  41st  section  of  the  National  Currency  Act  of  June  3d, 
1864. 

Is  it  not,  then,  entirely  true  that  there  is  but  one  question 
for  discussion  here,  having,  if  you  please,  a  twofold  applica 
tion,  one,  to  the  question  of  investment  in  Federal  securities, 
and  one  to  the  corporate  aggregate  known  as  the  National 
Bank;  and  that  question  is,  whether  what  cannot  be  done  to 
the  bank  as  a  whole,  can  be  done,  from  the  peculiar  form  of 
organization,  to  the  property  held  by  the  shareholders;  so 
that  what  the  State  loses  by  the  immunity  that  this  Court 
has  thrown  over  the  investment  in  the  aggregate,  is  recovered 
by  the  State,  with  the  full  power  of  taxation  over  the  same 
res,  in  a  different  form  of  approach  and  attack;  that  what  this 
Court  has  decided  is  necessary,  is  essential,  is  vital  to  the 
public  credit,  in  respect  of  the  investment,  that  what  this 
Court  has  decided  is  necessary,  is  essential,  is  vital  to  the 
corporate  existence,  for  the  public  purposes  of  the  Govern 
ment  of  the  United  States,  and  so  must  be  protected  by  the 
power  of  interpreting  the  Constitution  lodged  in  this  Court, 
and  the  authority  of  its  mandate  to  be  executed  by  the  power 
of  the  nation,  is,  nevertheless,  to  be  wrested  from  Federal 
control  to  the  destruction  and  ruin  of  institutions,  created 
to  be  preserved,  to  the  injury  and  burden  of  the  public 
credit,  intended  to  be  advanced,  simply  by  the  form  of  say 
ing  to  the  tax  rater  and  the  tax  collector,  "lay  the  tax,  that 
you  would  have  exacted  from  the  corporation,  distributively 


312         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

upon  the  shareholders,  and  we  escape  from  the  Federal  Con 
stitution  and  the  Supreme  Court  of  the  United  States,  by 
the  form  and  manner  of  assessing  and  collecting,"  since  there 
is,  in  the  practice  of  the  States,  a  well-known  habit  of  levying 
taxes  indifferently  upon  the  aggregate  or  upon  the  share 
holders,  as  convenience  dictates,  always  recognizing  that, 
whichever  form  they  adopt,  they  tax  the  same  thing,  acquire 
their  returns  from  the  same  persons,  and  receive  into  the 
Treasury  the  same  results.  Certainly  there  never  was  such 
a  discomfiture  of  fact  and  substance,  of  constitutional 
power,  and  of  the  firm,  strong  reasoning  of  this  Court,  as 
would  result,  if  this  ingenious  combination  between  the 
Legislature  of  a  State  and  its  officers  for  the  assessment 
and  collection  of  taxes  can  effect  this  result,  and  destroy 
what  this  Court  has  undertaken  to  preserve. 

I  will  first  consider,  as  most  briefly  and  satisfactorily  to  be 
attended  to,  the  question  whether  the  State,  in  the  taxation 
it  insists  upon  against  these  shareholders,  derives  any  author 
ity  from  the  41st  section  of  the  Act  of  Congress  of  June  3, 
1864,  and  I  say  unquestionably  that  it  does  not;  and  without 
any  discussion  of  whether  that  section  be,  as  Mr.  Webster 
imagined  it  would  not  be,  unconstitutional,  and  without 
examining  the  particular  construction  of  that  section, 
whether  it  be  such  as  to  allow  these  stocks,  thus  invested  in 
Federal  securities,  to  be  taxed  or  not, — irrespective  of  that, — 
but  supposing  that  the  section  communicates  a  license  accord 
ing  to  its  terms,  and  that,  if  its  terms  were  observed,  this 
tax  would  be  protected  and  allowable  under  it,  I  say  that 
there  is  no  credit  nor  power  given  to  the  State  in  this  taxa 
tion  from  that  section,  simply  for  the  reason  that  it  has  not 
observed  the  conditions.  The  conditions  are,  that,  if  the 
State  taxes  the  shares  of  the  national  banks,  it  shall  impose 
upon  them  no  other  nor  higher  rate  of  taxation  than  it  im 
poses  upon  the  general  investment  of  personal  property  of 
the  State;  and,  secondly,  observing  that,  that  it  shall  also 


BANK  TAX  CASE  313 

tax  them  at  no  other  rate  than  it  imposes  specifically  upon 
the  shares  of  State  banking  institutions.  It  is  undisputed 
here,  that,  under  the  laws  of  the  State  of  New  York,  no  rate 
nor  tax  whatever  is  laid  upon  the  shares  of  State  banking 
institutions.  The  statutes  of  the  State  of  New  York  say 
that  the  shares  of  State  banking  institutions  shall  not  be 
taxed  to  the  shareholders,  and  they  are  not  taxed. 

What,  then,  is  the  taxation  upon  a  State  banking  institu 
tion  in  the  State  of  New  York?  It  is  a  tax  upon  the  aggre 
gate  capital  of  the  bank,  exacted  from  the  corporation  itself. 
Now,  will  my  learned  friends  tell  me  that,  although  the  State 
of  New  York  does  not  lay  any  tax  upon  the  shareholders  of 
State  banks,  and  so  does  not  observe  the  condition  of  the 
41st  section  of  the  Act  of  Congress,  it  does  lay  the  same  rate 
upon  the  capital  of  the  bank  in  the  hands  of  the  corporation, 
and  that  that  is  equivalent  to  laying  it  on  the  shareholders? 
If  they  will  only  do  that,  they  will  relieve  me  from  the  need 
of  any  argument;  for,  if  laying  a  tax  on  the  capital  is  the  same 
as  laying  it  on  the  shares  for  the  purposes  of  a  State  corpora 
tion,  then  laying  it  on  the  shares  is  the  same  as  laying  it  on 
the  capital  of  National  Banks,  and  that  is  all  that  I  have 
undertaken  to  prove.  But  even  if  they  thus  surrender  the 
practical  question  to  escape  from  a  special  difficulty,  the 
actual  state  of  the  system  of  taxation  and  its  enforcement 
in  the  State  of  New  York  would  not  relieve  them,  because, 
in  regard  to  the  tax  rated  and  collected  from  the  corporations 
created  by  State  laws  as  the  persons  taxed,  and  taxed  upon 
their  aggregate  capital,  under  the  decisions  of  this  Court, 
controlling  and  acted  upon  in  the  State  of  New  York,  it  is 
required,  that,  before  the  capital  of  the  State  bank  presents 
its  aggregate  for  the  rating  of  the  tax  and  its  payment,  there 
should  be  a  deduction  from  it  of  very  dollar  that  is  invested 
in  Federal  securities;  so  that,  as  a  matter  of  fact,  if,  side  by 
side  with  this  National  Bank  in  the  city  of  Utica,  there  were 
a  State  bank,  of  the  same  capital  of  two  hundred  thousand 


314         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

dollars,  having  that  capital  invested  precisely  as  the  capital 
of  this  National  Bank  is  invested,  in  Federal  securities, 
while,  under  the  form  of  taxation  laid  and  enforced  by  the 
State  upon  the  banks  which  I  represent,  there  would  be 
paid  a  full  rate  upon  the  two  hundred  thousand  dollars, 
distributed  upon  the  shares,  there  would  not  be  one  dollar 
of  tax  laid  or  claimed  against  the  State  institution,  that 
carried  on  business  in  the  same  street,  under  the  author 
ity  of  the  State  of  New  York.  Therefore,  put  it  on  matter 
of  form  or  put  it  on  matter  of  substance,  your  State  author 
ity  lays  no  taxation  on  State  institutions  situated  precisely 
as  this  National  institution  is  situated;  and  hence,  when  you 
seek  authority  by  permission  and  license  of  the  Act  of  Con 
gress,  the  limitations  and  the  conditions  must  of  course  be 
observed,  and  they  wholly  fail.  I  ask  your  Honors'  atten 
tion  to  a  very  intelligent  and  well-considered  opinion,  given 
in  our  State,  in  which  it  has  been  held  by  a  branch  of  the 
Supreme  Court,  that,  conceding  that  the  shares  may  be  tax 
able  for  aught  that  the  authority  of  the  United  States  gives 
under  the  permission  of  the  41st  section  of  the  National 
Banking  Act,  yet,  for  the  want  of  the  observance  of  its  con 
ditions,  the  law  against  which  we  are  now  remonstrating 
and  arguing  is  wholly  invalid,  because  the  State  does  not 
lay  a  tax.  That  learned  Court  says: 

"The  system  of  taxation  adopted  by  the  State,  under  the 
provision  of  the  Revised  Statutes,  is,  that  the  laws  of  the 
State  provide  for  the  taxing  the  capital  of  a  State  Bank,  and 
the  stockholder  is  not  to  be  taxed,  as  an  individual,  upon  his 
shares.  Therefore  there  is  no  State  law,  making  provision 
in  any  case  for  taxing  the  shareholders  in  State  Banks  for 
their  shares.  Consequently  the  shareholders  of  National 
banks,  or  State  banks,  are  not  liable  to  taxation  in  such 
shares."* 

*  The  People  vs.  The   Town  of  Barton,   29  Howard's  New  York   Practice 
Reports,  371. 


BANK  TAX  CASE  315 

This  your  Honors  will  rest  upon,  as  satisfactory  proof 
that  the  system  of  taxation  is  such  as  I  have  stated;  and  the 
authority  of  that  Court — indeed,  I  think  no  authority  is 
needed  for  it — is,  that,  if  the  permission  to  tax  by  the  State 
rests  upon  the  41st  section,  this  tax  cannot  be  sustained,  for 
the  reason  that  the  conditions  are  not  observed.  I  shall, 
therefore,  for  the  rest,  confine  myself  to  asking  what  is  the 
great  and  principle  question  of  the  case  presented  to  the 
Court,  to  wit,  the  assumed  power  of  the  State  of  New  York 
to  levy  taxes  upon  this  fund  and  capital,  by  the  form  and 
means  of  taxing  shareholders,  when  it  cannot  do  it  in  any 
other  way, — a  power  against  the  will  of  the  Government, 
against  the  decisions  of  this  Court,  against  any  construction 
of  the  Constitution  of  the  United  States  that  would  seek  to 
inhibit  it.  But  I  ask  attention,  for  one  moment,  to  what  I 
assume  will  be  regarded,  when  a  case  shall  properly  arise  for 
it,  as  the  proper  construction  of  this  proviso.  Your  Honors 
will  notice,  that  the  41st  section  provides  for  the  taxation  of 
these  institutions  by  the  National  Government,  and  then 
goes  on  to  say: 

"Provided,  That  nothing  in  this  act  shall  be  construed  to 
prevent  all  the  shares  in  any  of  the  said  associations,  held  by 
any  person  or  body  corporate,  from  being  included  in  the 
valuation  of  the  personal  property  of  such  person  or  body 
corporate,  (from  being  included  in  the  valuation  of  the  per 
sonal  property  of  such  person  or  corporation)  in  the  assess 
ment  of  taxes,  imposed  by,  or  under  State  authority,  at  the 
place  where  such  bank  is  located,  and  not  elsewhere;  but  not 
at  a  greater  rate  than  is  assessed  upon  any  other  moneyed 
capital  in  the  hands  of  individual  citizens  of  such  State: 
provided  further,  That  the  tax  so  imposed,  under  the  laws  of 
any  State,  upon  the  shares  of  any  of  the  associations  author 
ized  by  this  act,  shall  not  exceed  the  rate  imposed  upon  the 
shares  in  any  of  the  banks  organized  under  authority  of  the 
State  where  such  association  is  located." 


316         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

I  apprehend  that  no  one  can  claim,  that  there  is  anything 
in  this  act  that  had  relation  to  exemptions,  except  such  as 
grew  out  of  its  creating  these  public  institutions  agencies  of 
the  Government.  In  other  words,  the  exemption,  created 
or  inferable  from  this  act,  would  be  the  exemption  that 
belonged  to  these  banks  as  agencies;  and  there  is  nothing  in 
this  act  that  has  any  connection  with  the  exemption  of  the 
United  States  securities.  When,  therefore,  you  are  constru 
ing  this  proviso,  which  is  intended  to  save  from  the  operation 
of  an  inferential  exemption  from  this  act,  you  must  not  carry 
your  proviso  or  saving  clause  beyond  the  principal  provision 
which  it  is  designed  to  define,  not  to  avoid.  It  means,  then, 
that  nothing  in  the  nature  of  these  institutions,  as  agencies 
or  instruments  of  the  authority  of  the  United  States  under 
the  Constitution,  shall  save  them  from  taxation  on  their 
property,  in  the  same  way  as  other  moneyed  capital  may  be 
taxed  by  States;  but  it  was  under  other  laws  of  the  United 
States  that  the  immunity  of  the  investment  in  Federal 
securities  was  claimable,  and  was  created.  The  Congress 
of  the  United  States,  adopting  and  following  the  judgment 
of  this  Court,  enacted,  in  the  Statute  of  February  25,  1862, 
that  the  Federal  securities,  whether  held  by  individuals, 
corporations,  or  associations,  should  be  exempt  from  all  tax 
ation  under  State  or  municipal  authority.  It  is,  then,  under 
that  and  similar  statutes,  that  this  form  and  application  of 
immunity  is  derived;  and  this  saving  clause  does  not  operate 
on  that  act.  It  merely  means,  "You  may  tax  the  invest 
ments  in  the  corporate  property  made  by  these  corporations, 
as  you  might  do,  if  the  immunity  of  Federal  agency  was  not 
over  them."  When  you  come  to  the  question,  whether, 
under  cover  of  this  saving  clause  against  a  particular  effect 
of  the  statute,  you  have  opened  to  the  States  taxation  upon 
Federal  securities  owned  by  these  corporations,  when  you 
have  closed  it  against  taxation  in  any  and  every  other  form 
of  ownership,  you  are  proposing  to  give  to  this  section  a 


BANK  TAX  CASE  317 

force  which  it  never,  in  legislative  intent,  could  have  been 
designed  to  have,  and  which,  on  any  sound  principle  of 
construction,  it  cannot  bear.  Its  meaning,  so  far  as  the 
question  of  these  investments  by  these  banks  in  the  Federal 
securities  goes,  would  be  to  put  them,  in  that  respect,  on 
the  same  footing  with  an  individual  having  his  moneyed 
capital  invested  in  that  manner,  and  on  the  same  footing 
in  which  a  State  corporation,  having  its  capital  invested  in 
these  securities,  would  stand.  Is  it  to  be  said,  that,  when 
all  the  moneyed  capital  in  the  hands  of  individuals  and 
State  corporations,  that  is  invested  in  the  United  States 
securities,  is  protected  against  taxation  by  the  State,  as 
soon  as  one  of  the  National  banks  invests  in  United  States 
securities,  it  has  opened  and  exposed  to  taxation  those 
very  securities,  which  are  exempt  by  the  law  of  1862,  by 
force  of  a  proviso  which  says  that  the  banking  act  shall 
not  be  construed  to  exempt  the  National  banks  from  State 
taxation? 

I  think,  therefore,  that,  on  any  construction  of  that  section 
(even  if,  by  conformity  of  the  State  to  the  rate  of  taxation  on 
State  bank  shares  that  it  has  laid  on  national  bank  shares, 
the  permission  of  that  section  could  be  invoked  in  favor  of 
this  tax),  these  three  banks  would  still  be  exempt  from  the 
payment  of  any  tax  on  that  portion  of  their  capital  which  was 
invested  in  the  United  States  securities,  for  the  reason  that 
I  have  stated  to  the  Court.  But  if  this  proviso  is  not  before 
the  Court  for  adjudication  because  it  has  not  been  followed 
by  the  State,  it  will  be  for  your  Honors  to  consider  how  far 
that  point  can  be  disposed  of  in  your  judgment. 

It  really  seems  as  if  we  were  reduced  to  but  a  very  narrow 
region  of  reasoning,  if  we  are  so  far  advanced  successfully. 
It  must  come  to  this,  that  the  State,  having  no  power  (for 
this  law  gives  none)  to  pass  the  act  which  it  has  actually 
passed, — no  power  derived  from  the  Federal  government, — 
assumes  a  right  to  tax  these  investments  and  tax  this  capital 


318         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

in  the  form  of  shares,  although  it  cannot  tax  them,  as  has 
been  so  often  urged,  in  the  aggregate  or  corporate  capacity. 
The  argument  can  rest  upon  nothing  but  this:  it  asserts  a 
distinction  between  the  capital  stock  of  the  corporation  in 
the  aggregate,  and  all  the  shares  of  such  capital  stock  as  sub 
jects  of  taxation;  such  a  distinction  between  these  two  de 
scriptions  of  property  (I  say  two  descriptions  of  the  same 
thing),  that  a  tax  levied  upon  the  shares  is  constitutional, 
although  a  tax  levied  upon  the  aggregate  is  unconstitutional. 
It  asserts  another  distinction,  a  distinction  between  the  cor 
poration  and  the  shareholders  or  members  of  the  corporation ; 
for  are  not  shareholders  members  of  the  corporation?  Is  not 
the  corporation  composed  of  members?  When  all  the  mem 
bers  of  a  corporation  cease  to  exist  does  not  the  corporation 
cease?  It  asserts  a  distinction  between  the  corporation  and 
the  shareholders  or  members  of  the  corporation,  as  taxable 
persons,  to  the  effect  that  a  tax  upon,  or  in  respect  of,  the 
same  property,  distributed  upon  the  corporate  members,  is 
constitutional,  though,  laid  upon  the  corporate  body,  it  is 
unconstitutional.  I  have  looked  in  vain  through  the  briefs 
and  listened  in  vain  to  the  arguments  of  my  learned  friends, 
to  find  any  other  ground  for  them  to  discriminate  for  the 
constitutionality  of  the  tax  on  the  shareholders,  admitting 
the  unconstitutionality  of  the  tax  on  the  corporation  and  its 
property,  except  in  one  or  the  other  of  these  two  forms. 

I  will  take  up  first  the  question  of  investments.  I  say 
that  the  proposition,  that  the  investment  of  a  corporation  in 
Federal  securities  of  the  whole  or  a  part  of  its  capital  stock 
cannot  be  made  subject  to  State  taxation,  laid  upon  its 
capital  stock,  and  yet  that  the  same  investments  may  be 
subjected  to  State  taxation,  laid  upon  the  divisions  or  parts 
of  its  capital  stock  known  as  shares,  cannot  be  maintained. 
The  first  reason  I  assign  for  this  is,  because  the  attempted 
distinction  overlooks  the  legal  character  and  grounds  of  the 
exemption.  The  exemption  is  of  the  res,  of  the  subject  of 


BANK  TAX  CASE  3l9 

the  securities.  It  has  no  relation  to  any  form  of  enjoyment 
or  ownership  of  them.  It  says  that  this  subject  of  property 
shall  not  yield  a  tax,  and  the  exemption  is  laid  for  the  sake 
of  the  investment,  and  not  from  partiality  to  any  owner, 
or  any  form  of  ownership.  It  is  that  the  thing  itself  may  be 
better,  that  it  may  be  worthier,  that  it  may  be  more  valuable, 
the  occasions  and  the  duties  of  the  Federal  Government  re 
quiring  that  it  should  be  made  so  and  kept  so,  and  it  has  no 
more  concern  with  any  form  of  ownership,  as  matter  of 
policy  or  as  matter  of  personal  protection,  than  it  has  with 
the  remotest  considerations  from  the  topic.  It  is  that  this 
thing  shall  have  the  virtue  in  it  of  being  worthier  than 
other  property,  because  it  is  exempted  from  State  taxation. 
When  you  are  talking  about  the  different  relations  which 
the  shareholder  and  the  corporation  have  to  the  corporate 
property,  and  the  different  relations  that  the  corporation 
and  the  shareholders  have  to  what  are  called  shares,  you 
are  talking  of  what  is  interesting  and  important  in  some  views 
of  the  law;  but  you  are  talking  of  a  subject  that  has  no  rela 
tion  to  this  question, — whether,  for  the  purposes  of  maintain 
ing  the  exemption  of  this  investment  from  taxation,  the 
exemption  is  to  attend  it  in  every  form  of  substantial  owner 
ship;  for  it  is  only  through  forms  of  substantial  ownership 
that  the  worthiness  of  the  thing  is  to  be  preserved.  There 
is  no  such  separation  possible  as  leaving  the  securities  as 
worthy  as  before,  but  disparaging  their  purchase,  because  in  a 
certain  form  they  cannot  be  owned  without  being  taxable. 
But  it  also  overlooks  the  legal  ground  and  character  of 
taxation.  Taxation  pertains  to  the  subject,  the  res,  and 
has  nothing  to  do  with  ownership  and  cares  nothing  about  it. 
It  is  wholly  immaterial  to  the  taxing  power  what  the  form  of 
ownership  may  be;  it  is  the  value  that  it  is  after.  In  whatever 
owner  it  finds  that  value,  the  taxing  power  will  extract  it  by 
proceeding  in  rent,  if  you  please,  and  not  care  who  is  the 
owner;  or,  if  convenient,  it  collects  the  tax  through  the  med- 


320         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

ium  of  the  owner,  and  the  coercion  is  only  to  make  him  pay  it. 
The  taxing  power,  in  pursuing  its  method  of  taxing,  is  no 
respecter  of  persons  or  forms  or  title.  It  is  the  thing  it 
looks  to;  and  when  land  is  the  subject  of  taxation,  as  we  all 
know,  the  exaction  of  the  tax  or  enforcement  of  it  is  wholly 
unconcerned  with  titles,  incumbrances,  liens,  divisions  of 
equity  and  at  law  in  the  enjoyment  of  the  owner.  It 
taxes  the  property,  and  sells  it  by  an  absolute  and  paramount 
title,  dealing  with  the  thing  itself.  The  relation  is  the  same 
towards  personal  property,  although  there  may  not  be 
occasion  or  opportunity  to  apply  practically  the  same  effect. 
I  say,  then,  you  overlook  the  nature  of  the  distinction,  when 
you  say  that  the  same  thing  is  to  be  extracted  from  taxa 
tion  in  one  form  of  enjoyment  and  not  in  another. 

Now,  suppose  that  a  government,  wishing  to  invite  pop 
ulation  or  to  improve  the  domestic  habits  of  its  people, 
establishes  an  arrangement  promising  freedom  from  taxa 
tion  to  all  dwelling  houses  that  should  be  built.  The  dwell 
ing  houses  are  built,  the  law  being  that  dwelling  houses 
shall  be  exempt  from  taxation.  Can  you  tax  the  owner  of  a 
dwelling  house  on  the  rent  he  gets  from  his  tenant?  Is  not 
that  taxing  his  dwelling  house?  Is  the  promise  performed, 
is  the  faith  kept,  when  you  say,  "  We  do  not  tax  your  dwelling 
house,  we  do  not  tax  you  on  the  fee  of  your  dwelling  house,  we 
tax  you  on  the  rent  of  your  dwelling  house"?  You  tax  the 
dwelling  house  in  one  of  the  forms  of  its  owner's  enjoyment 
of  it  as  property.  Can  you  tax  the  tenant  and  say,  "We 
tax  you  in  proportion  to  the  rent  that  you  pay  to  your 
landlord"?  That  is  taxing  the  dwelling  house;  that  is 
taxing  the  house- — the  thing  which  has  been  procured  by  the 
public  interests,  upon  the  promise  that  it  should  not  bear 
taxation.  Is  not  the  taxation  of  the  occupation  of  the  house, 
whether  it  be  imposed  upon  the  landlord  or  upon  the  tenant, 
a  tax  upon  the  house?  Certainly  it  is.  And  this  shows  us 
that  taxation  and  exemption,  correlative  terms,  touch  and 


BANK  TAX  CASE  321 

adhere  to  the  subject,  and  have  no  concern  with  owner 
ship,  title,  property,  or  enjoyment.  All  title,  ownership, 
property,  enjoyment,  is  lesser  than,  and  is  included  in,  the 
matter  that  is  the  subject  of  property,  and  that  swallows 
up  title,  interests,  legal  and  beneficial  relations;  and  when, 
in  the  sense  of  taxation  and  the  sense  of  exemption,  the 
subject  has  been  rescued  from  burdens,  nobody  can  feel 
them.  Has  the  subject  been  rescued,  if  anybody  can  feel 
the  burden  in  consequence  of  the  subject?  Has  the  subject 
been  saved  from  contribution,  if  anybody,  in  consequence 
of  connection  with  the  subject,  has  to  contribute?  Certainly 
not.  You  must  find  some  other  relation  than  that  of  owner 
ship,  whether  it  be  legal  or  equitable,  that  you  tax,  or  else 
you  tax  the  property  itself. 

This,  too,  exalts  the  forms  and  phrases  of  the  law  above 
the  law  itself.  The  United  States  Government  have  thought 
it  necessary  to  give  to  their  securities  this  credit,  and  thus 
to  send  them  out  into  the  whole  nation  and  to  the  world. 
They  have  not  broken  their  faith  by  any  legislation.  They 
have  not  broken  their  faith  by  any  construction  of  legis 
lation.  They  have  not  broken  their  faith  by  any  adjudi 
cation  of  this  court  up  to  this  time,  whatever  the  Court  of 
New  York  may  have  thought.  Twice  corrected  by  this 
Court  on  these  subjects,  now,  with  legal  effrontery,  not 
personal,  that  learned  Court  comes  here  and  says : 

"You  have  told  us  over  and  over  again  that  we  cannot 
tax  United  States  securities ;  cannot  tax  them  in  the  measure 
of  anybody's  property;  cannot  tax  them  in  the  form  of 
value  in  property  at  a  nominal,  and  not  a  real,  standard; 
but  we  have  found  one  shape  in  which  we  can  tax  them  in 
spite  of  you, — if  a  national  bank  owns  them,  we  can  make  the 
shareholders  pay  the  tax." 

This,  I  say,  stultifies  the  acts  of  Congress  and  nullifies 
the  decisions  of  this  Court  on  that  subject.  How  do  you 
get  a  tax  on  these  securities  and  make  a  shareholder  in  a 

23 


322         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

bank  pay  it?  The  whole  capital  of  the  bank  is  free.  That 
is  admitted.  It  is  free  by  its  own  nature,  by  its  being 
invested  in  these  securities.  It  is  free,  because  it  has  been 
decided  that  the  States  cannot  tax  this  capital.  That  is 
all  admitted.  But  it  is  said,  "We  tax  the  shareholders." 
They  must  tax  the  shareholders  upon  this  property,  this 
value,  either  because  they  do  not  own  it,  or  because  they 
do.  You  may  tax  it  because  they  do  not  own  it,  as  you 
would  tax  A  on  property  of  B,  and  tell  him  that,  since  B 
is  not  able  to  pay  your  tax,  you  tax  A  on  his  property. 
That,  however,  is  not  to  be  imputed.  Then  you  tax  the 
shareholders  because  they  do  own  this  property,  because 
they  have  some  ownership  in  this  investment;  and  yet  the 
brief  of  my  learned  opponents  admits  that  the  owner  of 
United  States  securities  cannot  be  taxed  by  the  States  for 
them. 

Let  us  look  at  that  a  little  more  closely.  Suppose  that  A 
holds,  as  trustee,  $100,000  worth  of  the  securities  of  the 
United  States,  and  is  asked  to  give  an  account  of  his  taxa 
ble  property  in  his  relation  as  trustee,  and  he  states  that  the 
trust  fund  is  all  invested  in  United  States  securities.  That 
exempts  him  from  taxation.  Then  the  tax-gatherer  hunts 
up  the  cestui  que  trust  and  says,  "What  have  you?"  The 
answer  is,  "My  only  income  is  from  a  trust  fund  in  the  hands 
of  A,  my  trustee;  he  is  the  man  to  pay  the  tax."  "Oh,  we 
cannot  tax  that,  because  he  holds  United  States  securities; 
what  is  your  beneficial  property?"  "It  is  $100,000." 
"Then  we  will  tax  you."  "Well,  but,"  the  cestui  que  trust 
says,  "I  do  not  own  the  property;  A  is  the  legal  owner,  my 
trustee;  why  not  tax  him,  if  anybody  is  to  be  taxed?  I  do 
not  own  the  property;  if  anybody  is  to  pay  the  tax,  the 
owner,  the  trustee,  is  to  pay."  "  No,"  says  the  tax-gatherer, 
"we  cannot  tax  the  owner;  he  is  exempt  on  account  of  the 
investment;  but  we  tax  you,  as  the  cestui  que  trust,  because 
you  are  the  beneficial  owner  and  not  the  legal  owner,  and 


BANK  TAX  CASE  323 

you  shall  pay  the  tax."  I  imagine  that,  if  the  State  should 
pursue  that  method,  this  Court  would  correct  it  and  say, 
"that  this  $100,000,  in  its  legal  estate,  in  its  equitable  estate, 
in  its  legal  control,  in  its  beneficial  enjoyment,  is  free  from  tax 
ation."  Yet  no  man  can  distinguish  between  a  legal  owner 
ship  in  United  States  securities,  and  an  ownership  in  those 
same  securities  lodged  in  a  form  and  organization  by  which 
twenty  people  part  with  their  legal  control  over  them,  and  turn 
themselves  into  the  enjoyment  of  them  as  beneficial  or  equi 
table  owners.  Take  this  case:  twenty  men  meet  together, 
with  $5,000  in  Federal  securities  each  as  private  property, 
and  put  them  in  bodily  and  make  the  capital  of  $100,000, 
invested  in  them,  of  a  bank  organized  under  this  act,  and 
come  out  what? — Organized  into  a  bank,  with  their  Federal 
securities  owned  by  the  bank,  of  which  they  are  the  owners, 
of  which  they  are  the  members,  of  which  they  are  the  stock 
holders,  the  legal  institution  holding  the  legal  property: 
Has  that  transmutation  made  the  securities  taxable  that 
were  not  taxable  before,  when  the  exemption  adheres  to  the 
securities,  and  not,  by  name,  to  any  form  of  ownership? 

But,  if  your  Honors  please,  the  proposition  that  the  cor 
porations,  created  and  performing  their  public  functions  as 
agencies  of  the  Federal  Government,  cannot  be  taxed  by 
the  State  on  their  capital,  franchise,  or  operations,  and  yet 
that  the  shareholders,  in  respect  of  their  membership  and 
ownership  of  the  corporate  body,  franchise,  and  capital, 
can  be  taxed,  is  self -repugnant  and  illusory;  and,  in  connec 
tion  with  this  point,  let  me  look  for  a  moment  and  briefly, 
though  a  subject  inviting  for  illustration,  upon  the  frame 
and  scheme  of  the  National  Bank  system,  one  of  the  most 
remarkable  creations  in  the  progress  of  this  nation,  one  of 
the  most  essential  means  of  carrying  this  nation  through  its 
late  trials,  and  saving  it  from  the  disasters  and  convulsions 
which  attend  a  restoration  of  peace  in  the  financial  circum 
stances  of  the  nation  and  its  citizens.  What  is  it,  and  what 


324         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

is  the  whole  idea  of  it?  What  is  the  whole  service  of  it? 
What  is  the  whole  genius  of  it?  It  is  this:  it  is  to  call  into 
the  fiscal  operations  of  the  Government,  in  the  execution 
of  its  powers  and  duties  under  the  Constitution,  the  capital, 
the  resources,  the  processes  of  private  interest  and  business, 
and  employ  them  as  agencies  and  means  in  the  public  ser 
vice.  It  is  the  connection  of  the  special  duty  and  function 
of  the  General  Government  with  the  living  circulation  of  the 
great  body  of  the  nation,  over  which  it  is  the  Government. 
Government  might  have  loan  offices,  loan  agencies,  sub- 
Treasuries,  and  multiply  them  in  every  village,  and  they 
would  be  a  dead  organization  of  the  Government,  mere 
functionaries;  but,  by  this  system,  by  a  happy  improve 
ment  upon  everything  we  had  ventured  or  imagined  in  our 
financial  experience,  the  Government  seized  upon  the  living 
energies  of  the  American  people  and  made  them,  by  their 
voluntary  organizations,  agents  in  the  public  service  of 
the  country,  just  as  distinctly,  just  as  usefully,  as,  in  calling 
upon  the  citizens  to  enroll  their  persons  in  the  military 
service  of  the  country,  you  have,  instead  of  a  dead  organi 
zation,  a  living  body  of  citizen  soldiers.  This  is  what  the 
bill  did,  and  what  it  wanted  to  do,  and  what  it  successfully 
and  wonderfully  accomplished.  That  was  the  thing;  it 
was  the  private  persons,  and  the  private  interests,  and  the 
private  processes,  and  the  private  energy  of  the  people,  that 
it  wanted  to  unite  in  this  public  service.  That  was  the  sub 
stance,  and  the  rest  was  nothing  but  form.  It  was  to  com 
bine  or  organize  the  collective  private  capital  and  the  re 
sources  of  the  nation  under  the  well-known  form  of  legal 
incorporation,  as  the  most  convenient,  if  not  the  necessary 
form  of  accomplishing  public  objects.  Now,  as  I  have  said 
of  an  army,  it  is  the  array  that  constitutes  the  army.  It 
is  the  power,  it  is  the  array,  that  you  want;  and  the  rest: — 
of  organization,  of  articles  of  war,  or  arrangement  of  ranks 
and  grades,  and  all  the  machinery  of  control,  is  for  the  array, 


BANK  TAX  CASE 

and  not  the  array  for  it;  and  so  it  is  the  array  under  this  or= 
ganized  banking  system  that  is  useful*  It  is  the  array  of  the 
private  enterprise,  capital,  and  business,  that  is  Wanted;  and 
the  corporate  form,  a  well-known  arrangement  for  manag* 
ing  property,  is  adopted,  because  it  is  suitable  for  this,  just 
as  it  is  for  the  purely  private  operations  and  affairs  of  life. 
Upon  this  mere  statement,  which  cannot  be  contravened, 
it  is  apparent  that  the  instrumentality  adopted  by  Congress 
for  executing  these  powers  of  the  Government,  has  for  its 
essential  element  this  associated  capital  and  these  personal 
exertions,  and  that  the  corporation  is  but  the  form  of  wield 
ing  and  operating  the  capital.  Then,  as  I  have  said,  it  is 
not  the  artificial  person  that  is  the  object  of  the  Government's 
care,  or  that  is  the  principle  or  substance  of  its  object. 
That  is  but  a  form,  and  as  a  form  alone  it  is  to  be  allowed 
to  operate  and  to  have  its  consequences.  If  immunity  from 
State  taxation  be  the  prerogative  and  the  necessity  of  these 
legal  organizations,  it  is  the  immunity  of  the  contributed 
capital  and  of  the  contributors  that  is  needed.  If  the  im 
munity  is  essential  for  the  Government's  purpose  to  main 
tain  the  corporation,  it  is  essential  for  the  Government's 
purpose  that  this  immunity  should  rest  upon  those  who  are 
to  contribute  their  capital  and  find  their  inducements  to 
volunteer  in  this  service  of  the  Government;  and  any  pro 
tection  or  immunity,  that  shall  occupy  itself  and  confine  it 
self  to  the  protection  of  the  corporate  capacity,  and  leave 
the  individuals,  the  members,  unprotected,  would  soon  ex 
hibit  the  fact  that  it  is  the  members  who  make  up  the 
corporation,  and  not  the  corporation  which  secures  its  own 
masters  and  members.  All  the  arguments  which  we  have 
heard  about  the  bank  and  the  shareholders,  that  the  bank 
holds  its  property  by  its  own  title,  and  that  no  shareholder 
has  any  title  in  it;  that  all  the  shareholders  together  can 
not  assign  nor  transfer  nor  convey  any  of  its  property, 
but  that  a  share  in  a  corporation  is  a  new  form  of  prop- 


326         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

erty;  and  that  it  belongs  to  the  shareholder,  and  that  the 
corporation  does  not  own  that,  and  the  corporation  cannot 
sell  that,  cannot  convey  that — perfectly  sound,  as  familiar 
as  any  other  of  the  first  elements  of  the  law — insisted 
upon  here  to  carry  certain  consequences,  have  no  effect 
whatever  on  those  consequences.  As  to  the  subject  matter 
of  this  controversy,  they  can  have  no  effect.  Various 
definitions  have  been  given  about  the  relation  of  a  share 
holder  to  a  corporation.  My  friends  seemed  to  prefer 
that  loosest  connection,  which  makes  the  shareholder  the 
holder  of  a  chose  in  action  or  right  of  action  against  a  cor 
poration,  the  same  as  a  creditor;  and  they  pushed  it  so  far 
as  to  say  that  they  think,  on  the  whole,  that  a  creditor  has 
a  nearer  and  closer  right  to  the  property  of  a  corporation 
than  a  shareholder  has,  because  he  will  have  to  be  first  paid 
when  the  affairs  of  the  corporation  are  closed;  and  the 
learned  Court  below  has  adopted  that  idea  to  some  extent. 
These  familiar  doctrines  are  not  in  dispute  here.  It  is 
for  the  very  reason  that  a  corporate  organization  has  these 
consequences,  that  a  corporate  organization  has  been 
selected  by  Congress  as  the  means  of  wielding  this  public 
operation  that  is  essential  to  the  service  of  the  Government. 
It  is  for  the  very  reason  of  these  effects,  that  it  has  adopted  it, 
to  wit;  that  a  form  is  provided  in  our  law,  whereby  the  vari 
ous  owners  of  property  may  combine  to  manage  it  in  a 
common  agency,  having  this  great  principle,  that  its  iden 
tity  shall  be  preserved,  although  individual  owners  may  dis 
pose  of  their  interests;  and  that  the  public  will,  or  major 
voice,  or  administrative  delegation,  shall  govern  the  com 
mon  property  for  the  common  good,  instead  of  having  it 
stand  always  on  the  individual  right  of  every  man  to  have 
his  own  will  carried  out.  That  is  all  there  is  to  a  corpora 
tion.  You  may  talk  about  it  forever;  it  is  wholly  a  form, 
known  in  our  law,  whereby  men  may  put  their  property  to 
gether  and  keep  it  in  that  form  of  ownership  and  organi- 


BANK  TAX  CASE  327 

zation  for  purposes  of  convenience  and  nothing  else;  and 
nobody  owns  it  but  they,  after  they  have  done  that.  It  is 
purely  a  short,  elliptical  expression  to  say  that  the  corpora 
tion  owns  it.  It  is  owned  by  the  shareholders;  it  is  owned 
by  the  owners  of  the  property.  As  against  each  other, 
they  have  committed  it  and  themselves  to  a  form  of  organi 
zation,  which  permits  of  the  disposition  of  the  property  and 
the  maintenance  of  the  title,  with  the  advantages  that  I 
have  named.  But  to  say  that  there  are  two  properties,  to 
wit,  $200,000  of  investment  that  belongs  to  the  corporation, 
and  another  $200,000  that  belongs  to  the  shareholders,  is 
perfectly  absurd.  To  say  that  this  united  ownership  in  a 
subject  of  property,  when  the  subject  of  property  is  free 
from  taxation,  leaves  the  individual  shareholders  subject  to 
taxation  on  their  shares, — I  mean  when  it  is  exempt  from 
taxation  by  an  authority  stronger  than  that  which  under 
takes  to  divert  the  form  of  taxation, — is  simply  saying  that 
the  paramount  government  is  master  of  the  question  of  the 
taxation  of  the  property,  and  the  State  government  is  yet 
final  master  of  the  question,  by  being  master  of  form  and 
device.  This  Government  is  no  master  of  the  question 
whether  this  property  shall  be  taxed,  if  the  State  Govern 
ment  is  master  of  the  question  of  any  form  or  contrivance, 
which,  by  paltering  about  corporations  and  shareholders, 
and  shares  being  personal  property,  individual  property, 
and  the  corporation  being  aggregate  property,  can  exact 
a  tax  from  the  property.  Therefore  I  say,  that  no  rule  of 
law  has  ever  asserted,  and  no  refinements  of  argument  can 
ever  maintain,  that  the  corporation  has  its  capital  invested 
in  certain  property,  and  the  shareholders  have  their  shares 
represented  by  other  and  different  property.  When  the  res 
cannot  be  taxed,  I  want  you  to  find  some  other  res  than  the 
shareholders,  which  can  be  taxed.  Can  the  property  of  the 
corporation  perish,  and  that  of  the  shareholders  survive? 
The  rule  of  law  is  "res  peril  domino"  \  the  owner  loses  prop- 


328         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

erty  when  it  is  destroyed.  The  shareholders  lose  their 
property  when  the  capital  of  the  corporation  is  sunk.  That 
we  all  know,  and  some  of  us  have  felt;  and  we  never  heard 
of  such  a  distinction,  as  that  the  corporation  had  one  property 
and  we  had  another  property;  that  the  corporation  could  not 
be  taxed  on  its,  but  we  might  on  ours. 

Now,  put  this  question:  suppose,  as  may  be  done  unless 
there  be  some  distinction  in  our  States, — and  there  is  not  in 
the  Constitution  of  New  York  or  in  the  Constitution  of  most 
of  the  States, — that  the  ordinary  rate  of  taxation  is  three 
per  cent.;  that  is  the  rate  in  New  York  City  on  capital; 
three  per  cent,  is  laid  on  the  aggregate  capital  of  a  bank, 
and  three  per  cent,  upon  the  shareholders,  on  the  par  value 
of  their  shares;  in  that  case  are  two  values  taxed,  or  is  it 
one  value  that  is  taxed  twice?  Does  that  property  pay  the 
usual  rate  of  single  taxation,  three  per  cent.,  or  does  it  pay 
six  per  cent?  It  pays  $12,000;  $6,000  exacted  from  the  cor 
poration  and  $6,000  from  the  shareholders.  Is  that  three 
per  cent,  on  $400,000,  or  is  it  six  per  cent  on  $200,000?  It 
is  a  question  of  one  value  as  a  subject  of  taxation.  However 
they  may  be  distributed  on  interests,  they  are  really  the 
different  forms  of  owning  the  same  thing.  Suppose  that  a 
Government,  interested  to  invite  capital  in  favor  of  manu 
factures,  declares  that  it  will  not  tax  the  capital  of  manufac 
turing  companies  that  shall  be  formed  under  it;  and,  having 
got  them  formed,  it  taxes  the  shareholders  on  their  shares. 
It  says,  "We  cannot  tax  the  capital;  we  promised  not  to  tax 
the  capital;  but  we  tax  your  shares."  Would  that  be  allow 
able?  All  of  this  illustrates,  that  it  is  form  and  arrangement 
of  ownership  in  the  same  thing  that  is  meant  to  be  taxed  in 
one  form  and  cannot  be  taxed  in  another  form,  but  still  is 
the  same  thing;  and  that  the  exemption  is  not  formal  and 
modal,  but  is  of  the  thing  itself. 

We  are  prepared  now  for  a  further  proposition  of  general 
reasoning,  which  I  am  able  to  support  also  by  the  distinctest 


BANK  TAX  CASE  329 

and  most  explicit  authority.  If  one  of  the  States  issues 
a  charter  to  a  corporation,  with  a  clause  in  it  exempting 
the  capital  stock  from  taxation  for  a  limited  term,  and 
within  that  term  lays  a  tax  upon  the  shareholders,  will 
not  this  Court  correct  that  legislation  as  a  breach  of  the 
clause  of  the  Constitution  against  inpairing  the  obligation 
of  contracts?  I  submit  that  the  premises  of  that  question 
are  the  premises  of  this  question.  We  have  a  provision  of 
the  Constitution  of  the  United  States  that  the  obligation  of 
contracts  shall  not  be  violated  by  the  States;  we  have  a 
State  making  an  obligatory  contract  that  it  will  not  tax 
the  bank,  and  it  afterwards  taxes  the  shareholders.  Does 
it  not  thereby  violate  that  contract?  What  are  the  prem 
ises  of  this  question?  The  premises  of  this  question  are, 
that  the  Constitution  of  the  United  States  protects  this 
aggregate  investment  and  the  aggregate  capital,  franchise, 
and  operations  of  these  banks  from  State  taxation,  and  the 
State  taxes  the  shares;  does  that  violate,  or  not,  the  constitu 
tional  protection?  I  submit  that,  to  a  legal  mind,  this 
question  carries  its  own  answer;  and  it  is  only  from  the 
peculiarity  of  the  jurisdiction  of  this  Court,  under  the 
Constitution  of  the  United  States,  in  relation  to  sovereign 
communities,  that  we  are  enabled  to  have,  in  the  form  of  a 
lawsuit  and  a  legal  decision,  a  question  that  would  usually 
be  left  to  the  discussions  of  public  faith  and  the  maintenance 
of  the  honor  of  a  State.  In  the  third  volume  of  Howard's 
Reports,  this  whole  subject  is  disposed  of  by  the  unanimous 
judgment  of  this  Court.  Having  handed  that  case  to  my 
learned  opponents  before  their  argument,  Judge  Parker 
ventured  to  make  some  remark  upon  it  by  saying  that  it 
turned  upon  contract;  and  they  conceded  that,  under  this 
clause  of  the  Constitution,  if  the  State  had  bound  itself 
not  to  tax  the  bank,  it  could  not  tax  the  shares.  Now,  with 
great  respect  to  my  learned  friend,  conceding  that,  he  might 
as  well  concede,  that,  if  the  State  of  New  York,  under  the 


330         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

Constitution,  cannot  tax  the  bank,  it  cannot  tax  the  shares; 
and  no  lawyer  can  draw  a  discrimination  between  the  two 
cases.  Now  let  us  be  sure  that  this  case,  of  so  grave  conse 
quences  to  the  discussion  before  us,  is  as  applicable  as  I  have 
stated  it.  It  is  the  case  of  Gordon  vs.  The  Appeal  Tax 
Court,  3  Howard,  133,  an  appeal  from  the  Court  of  Appeals 
of  the  State  of  Maryland.  I  will  read  the  section  of  exemp 
tion  of  the  Maryland  statute: 

"That  upon  any  of  the  aforesaid  banks  accepting  of,  and 
complying  with,  the  terms  and  conditions  of  this  act,  the 
faith  of  the  State  is  hereby  pledged  not  to  impose  any 
further  tax  or  burden  upon  them." 

This  is  the  phrase  of  the  exemption;  the  State  is  pledged 
"not  to  impose  any  further  tax  or  burden  upon  them, 
during  the  continuance  of  their  charters  under  this  act," 
and  that  is  all;  there  is  not  a  word  about  stockholders  there. 
The  bank  accepted  this  law,  complied  with  its  provisions, 
and  some  years  afterwards  a  law  was  passed  taxing  the 
shareholders  for  their  shares,  as  component  parts  of  their 
general  personal  property.  Let  us  see  how  counsel  stated 
the  question.  On  page  139  the  counsel  for  the  shareholder 
stated  it  thus : 

"The  tax  of  1841  clashes  with  the  exemption.  It  is  laid 
on  everything  which  constitutes  the  property  of  the  bank, 
because,  in  a  schedule,  everything,  even  the  franchise,  goes 
to  make  up  the  aggregate  value  of  the  stock;  and  the  tax 
is  laid  on  the  cash  value  of  the  stock.  By  the  17th  section, 
the  assessors  are  directed  to  value  it  at  the  market  price. 
But  the  market  price  is  governed  by  the  value  of  all  the 
different  species  of  property  held  by  the  bank,  including  even 
the  franchise,  because  a  purchaser  looks  at  all  these  when 
about  to  invest.  It  is  impossible  to  separate  that  portion 
of  the  tax  which  falls  upon  the  franchise,  and,  as  the  legis 
lature  has  covered  the  whole,  the  entire  tax  must  fall." 

The  counter  proposition,  at  pages  141  to  143,  is  precisely 


BANK  TAX  CASE  331 

what  is  laid  down  here  that  the  bank  could  not  be  taxed; 
but  this  is  not  a  taxation  of  the  bank, — this  is  a  taxation  of 
the  shares,  as  component  parts  of  the  property  of  the  individ 
ual,  in  common  with  the  other  taxable  property  of  the  State, 
against  which  it  has  not  precluded  itself  by  a  correlative 
obligation  not  to  tax  the  bank.  It  was  insisted  upon  there, 
as  here,  that  the  difference  of  title  made  the  difference  of 
substance;  that  the  stock  was  personal  property,  transfer 
able  by  and  belonging  to  its  owner;  and  that  the  stock 
holders  do  not  own  the  property  of  the  bank  and  cannot 
convey  any  title  to  it.  In  other  words,  we  had  the  same 
disputable  facts  and  law  about  the  relations  of  stockholders 
and  stock,  capital  and  shares,  that  are  insisted  upon  here 
as  regards  the  modal  administration  of  the  res  owned; 
and  that  was  urged  upon  the  Court  as  a  reason  for  saying 
that  a  tax  on  the  shareholders  was  not  a  violation  of  the 
contract  not  to  tax  the  bank;  but  the  answer  of  the  Court 
was,  "That  is  not  the  way  to  keep  the  contract  you  have 
made;  the  subject  matter,  the  purpose,  the  object,  the 
promise,  the  result,  all  make  your  promise  cover  the  property 
in  its  beneficial,  and  not  its  formal  ownership,  and  the  prom 
ise  is  broken  when  you  tax  the  shares  of  the  bank";  and  his 
Honor,  Judge  Wayne,  delivering  the  unanimous  opinion  of 
the  Court,  put  the  subject  on  the  same  grounds;  nay,  its 
reasons  and  its  phrases  will  answer  for  a  decision  of  this 
cause.  After  that,  a  similar  case  arose  before  a  very  learned 
court  in  New  Jersey,  which  is  reported  in  3  Zabriskie,  484. 
Chief  Justice  Green,  a  judicial  authority  well  known  to 
this  Court,  in  giving  the  opinion  of  the  Supreme  Court  of 
New  Jersey,  said: 

"When  an  incorporated  company  is,  by  its  charter, 
exempt  from  taxation,  the  stock  of  the  company,  in  the  hands 
of  the  stockholders,  cannot  be  taxed.  It  represents,  and  is, 
the  title  to  the  property  of  the  company,  and  is  therefore 
included  in  the  exemption  of  the  charter." 


332        SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

There  the  exemption  of  the  charter  was  in  regard  to  the 
railroads  of  New  Jersey.  The  form  of  it,  I  think,  was  this : 
Fish  was  taxed  upon  his  shares  in  the  railroads,  as  a  part  of 
his  personal  property  in  the  aggregate;  it  was  put  down  at 
its  value  with  all  the  other  items  of  his  property,  and  he  con 
tested  the  valuation,  insisting  that  that  portion  of  his  prop 
erty  which  was  represented  by  the  shares,  was  not  taxable. 
The  exemption  of  the  stock  was  found  in  the  charter  of  the 
company,  which  provided  that  it  should  pay  ten  cents  to 
the  State  on  each  passenger,  "and  that  no  other  tax  or  im 
post  shall  be  levied  or  assessed  upon  said  company."  The 
State  did  not  assess  the  company,  but  assessed  the  share 
holders.  The  Supreme  Court  of  New  Jersey  said  that  could 
not  be  done,  and  your  Honors  were  not  troubled  with  that 
case  because  you  had  disposed  of  the  Maryland  case.  This 
also  confirms,  by  judicial  authority,  what  I  insist  upon, 
that  taxation  upon  the  bank,  and  again  upon  the  shares,  is 
nothing  but  double  taxation.  In  the  same  opinion  the 
New  Jersey  Court  say : 

"The  stock  of  incorporated  banks,  although  the  bank  pays 
a  tax  on  its  capital,  may  be  taxed  in  the  hands  of  stock 
holders  if  authorized  by  the  legislature,  although  it  is  a 
second  tax  on  the  same  property.  Double  taxation  may  be 
unequal,  oppressive,  and  unjust;  but  it  is  not  prohibited  by 
any  constitutional  provision,  and  it  is  in  the  discretion  of 
the  legislature,  and  courts  cannot  declare  void  a  statute, 
within  the  constitutional  power  of  the  legislature,  because 
its  operation  may  appear  unjust  and  oppressive." 

Of  course  this  topic  had  relation  to  another  item  of  taxa 
tion,  not  coming  within  the  protection  of  the  promise  of 
the  charter  and  the  Constitution  of  the  United  States. 
The  Chief  Justice  says  that  we  cannot  strike  down  a  tax 
that  our  legislature  has  put  upon  shares,  because  it  has  also 
put  it  on  the  stock;  it  is  two  taxations  of  the  same  thing; 
but,  as  our  Legislature  can  put  a  double  rate  upon  one  thing 


BANK  TAX  CASE  333 

and  a  single  rate  upon  another,  however  oppressive  it  may 
be,  it  is  not  for  us  to  interfere. 

There  seems  then,  if  your  Honors  please,  to  be  very  little 
reason  for  regretting  the  absence  of  judicial  authorities, 
upon  what  must  be  considered  the  principal  question  of 
the  case.  The  solution  is  very  simple.  The  relation  of  a 
corporation  and  of  the  stockholders,  in  respect  to  the  prop 
erty  which  constitutes  but  one  subject  of  ownership  and  of 
taxation,  is  a  twofold  relation  to  a  single  capital  or  value. 
The  relation  of  legal  and  equitable  title  in  the  same  land  is 
the  best  analogy.  So  long  as  a  tax  is  laid  upon  the  property, 
no  variety,  diversity,  nor  complexity  of  title  can  increase 
the  property  or  the  tax.  You  cannot  make  the  subject  of 
taxation  any  larger  by  reason  of  these  different  titles  that 
are  carved  out  of  it,  or  these  different  arrangements  for  its 
management.  If  Congress  means  to  protect  this  capital 
under  the  Constitution,  and  this  Court  has  held  that  it  has 
authority  so  to  do,  then  it  means  to  do  it  in  a  way  that  prac 
tically  saves  it  from  the  tax;  and,  so  long  as  the  exemption 
is  applied  to  the  property,  it  will  exempt  every  form  and 
every  title  in  that  property.  The  statutes  of  our  State,  in 
an  unbroken  course  of  legislation,  have  recognized  this 
fact:  that  stock  in  the  aggregate,  and  the  corporation 
as  a  person  to  be  taxed,  represent  the  same  property  as 
the  shares  of  stock  and  the  shareholders  as  persons  to  be 
taxed;  and  they  have  varied,  as  his  Honor  Judge  Nelson 
well  knows,  in  the  course  of  years,  their  forms  of  applying 
taxation  to  corporations,  as  seemed  to  them  most  con 
venient.  Under  the  statute  of  1813,  and  until  the  change 
by  the  Revised  Statutes,  all  the  interests  of  corporations  in 
the  State  of  New  York  were  taxed  upon  the  shareholders  in 
respect  of  their  shares,  as  included  in  the  bulk  of  their  prop 
erty.  From  the  period  of  the  Revised  Statutes,  a  change 
was  made  by  collecting  the  bulk  of  the  tax  from  the  bulk  of 
the  property;  and  as  a  part  of  the  same  system  of  assessing 


334         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

and  collecting  the  tax,  it  was  in  so  many  words  enacted, 
that  no  shares  of  stockholders,  in  corporations  that  were 
taxed  by  the  State,  should  themselves  pay  any  tax.  When 
the  stockholders  paid  the  tax,  under  the  old  system,  there 
was  no  tax  on  the  corporation;  when  the  corporation  paid 
the  tax,  under  the  new  system,  there  was  none  on  the  stock 
holders,  by  the  arrangement  of  the  law  which  treated  the 
form  clearly  as  modal,  for  the  convenience  of  the  State,  for 
the  security  of  the  collection  of  the  tax,  and  for  the  consid 
erations  of  policy  which  prefer  secondary  rather  than  direct 
taxation,  which  latter  our  systems  have  avoided  as  much  as 
possible.  There  is  no  reason  to  hold,  that,  in  the  State  of 
New  York  or  anywhere  else,  there  are  any  principles  of  law, 
by  which  these  propositions  that  are  established  can  pos 
sibly  be  disturbed.  I  have  referred  in  my  brief  to  a 
couple  of  cases  in  the  Massachusetts  Reports,  where  this 
question  is  well  considered  and  presented;  that  it  is  all  one 
subject  of  taxation,  and  is  taxable,  under  the  system  of  the 
laws,  either  to  the  persons  or  to  the  corporation,  as  may  be 
found  convenient. 

If  the  Court  please,  the  exemption  from  taxation,  enjoyed 
by  the  National  Banks  under  the  Constitution  and  Laws 
of  the  United  States,  is  of  the  capital  by  reason  of  its  invest 
ment  in  Federal  securities;  and  again  of  its  capital,  its  fran 
chise,  and  its  operations,  all  that  it  is  in  character,  in  prop 
erty,  and  in  faculty,  by  reason  of  its  being  an  instrument  of 
the  General  Government  in  the  exercise  of  its  constitutional 
powers.  As  the  learned  Judge  Comstock  says  in  the  case  in 
23  New  York  Reports,  "no  corporation  aggregate  that  the 
world  ever  saw  ever  owned  anything  but  its  capital,  property, 
and  its  franchise."  Nothing  is  added,  by  the  creation  of  a 
corporation,  to  the  property  that  the  contributors  put  in  by 
way  of  capital,  except  the  franchise.  That  is  added,  making 
the  artificial  person  a  creature  of  law;  but  the  franchise  is 
all  that  has  been  added.  Here  we  have  these  bodies,  that 


BANK  TAX  CASE  335 

are  in  their  capital  exempt,  and  in  their  franchise  exempt. 
What  is  there  about  them  that  can  be  taxed?  This  left 
nothing  that  constitutes  an  element  of  value,  or  of  posses 
sion,  or  of  property,  to  be  taxed.  If  the  franchise  had  come 
from  the  State,  if  the  franchise  were  taxable  by  the  State, 
as  the  creature  of  the  State,  you  might  find  something  in  the 
constitution  of  the  corporation  (although  its  capital  be 
exempted  if  invested  in  United  States  securities),  that 
would  endure  State  taxation.  They  might  tax  the  franchise 
inordinately,  or  moderately;  they  made  the  franchise,  and 
they  may  tax  it;  and  the  investment  of  the  capital  in  United 
States  securities  does  not  exempt  the  taxation  of  the  fran 
chise  from  the  power  of  the  State;  and  that  was  the  distinct- 
tion  which  was  made  by  some  observations  of  Mr.  Justice 
Nelson  in  the  first  bank  tax  case  in  2  Black,  referring  to  the 
state  of  the  law  in  New  York.  Franchise  may  bear  a  tax, 
he  said.  The  Legislature  changed  their  law,  but  did  not 
come  up  to  the  point  of  taxing  the  franchise,  which  was  taxing 
for  the  right  to  be,  and  with  reference  to  nothing  else.  The 
right  to  be  a  bank,  the  right  to  continue  from  year  to  year 
to  be  a  bank,  may  be  taxed.  That  was  all  that  was  open 
under  the  observation  of  this  Court.  They  did  not  put  the 
tax  on  the  franchise,  but  they  put  the  tax  on  the  capital,  on  a 
valuation  that  did  not  make  it  necessary  to  find  what  it 
was  really  worth,  but  took  a  nominal  value  for  it;  and 
thought  they  had  avoided  the  judgment  of  this  Court 
by  that  contrivance.  They  had  not  taxed  the  right  of  the 
corporation  to  be;  they  had  taxed  its  capital  upon  a  nominal 
instead  of  a  real,  value.  The  Court  said,  "You  may  have 
any  form  of  valuation  you  choose ;  but,  whatever  your  form 
of  valuation,  you  must  exempt  United  States  securities 
from  it."  That  is  the  case  in  2  Wallace.  Now  the  contriv 
ance  here  is,  that  of  having  a  bank,  with  its  franchise  from 
the  Federal  Government,  with  its  property  protected  under- 
Federal  law,  with  its  operations  and  its  capital  protected 


336         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

as  agents  and  instruments  of  the  Government,  incapable 
of  taxation,  withdrawn  from  the  taxable  property  of  the 
State,  and  they  pursue  all  these  into  the  divided  shares, 
and  exact  the  tax  upon  them  distributively. 

What  is  a  stockholder  in  a  corporation?  He  is  nothing, 
and  has  nothing,  in  a  corporation,  except  by  his  proportion 
in  the  capital  stock,  and  his  participation  in  the  franchise. 
It  is  to  the  stockholders  by  name  that  the  franchise  is  given, 
they  being  natural  persons,  that  they  should  have  the  fran 
chise  to  be  an  artificial  person.  Is  not  that  a  form  in  which 
the  natural  persons  are,  in  the  purpose  and  apparatus  of  the 
law,  used  as  one?  There  is  neither  fragment  nor  fig 
ment  for  a  tax  to  rest  upon,  when  there  is  that  extent  of 
exemption. 

Now,  if  the  Court  please,  on  the  general  question,  as  some 
thing  has  been  said,  so  inconsiderately,  about  the  compara 
tive  magnitude  or  connections  of  the  interest  with  the 
government  of  the  old  United  States  Bank,  and  of  this  many 
headed  institution,  distributed  all  through  the  country,  let 
me  call  your  Honors'  attention  to  the  importance  of  the 
relations  of  these  banks,  even  in  the  single  subject  of  the 
distribution  of  the  public  debt.  There  was  issued  in  one 
year  the  whole  bulk,  in  three  series,  of  the  seven-thirty 
currency  notes,  eight  hundred  and  thirty  millions  in  twelve 
months;  and,  of  that  issue  of  the  Federal  debt,  these  Na 
tional  Banks  took  and  distributed  seven  hundred  and  thirty- 
six  millions,  leaving  to  the  Government,  in  its  official  or 
ganizations  of  treasury,  sub-treasury  and  special  agencies, 
only  ninety -four  millions  out  of  eight  hundred  and  thirty- 
millions  to  be  so  disposed  of;  illustrating  thus  what  I  have 
ventured  to  suggest  was  the  genius  of  this  institution. 
Now,  to  say  of  these  two  great  governments,  Federal  and 
State,  standing  against  one  another,  under  the  Constitu 
tion,  with  their  relations  adjudicated  by  this  Court,  that 
all  these  relations  are  suddenly  changed  by  the  interven- 


BANK  TAX  CASE  337 

tion  of  this  corporate  form  of  a  National  Bank,  and  that 
the  State  becomes  the  master  of  the  two  governments,  by 
taking  away  from  the  Federal  Government  what  it  has 
reserved  to  itself,  by  giving  back  to  the  State  Governments 
what  they  had  lost  under  the  legislation  of  the  country, 
this  is  to  make  the  corporation, — the  mere  form, — the 
master  of  the  substance,  and  controller  of  those  political 
and  public  relations.  It  is  like  the  Genie  of  the  bottle; 
when  the  seal  is  up,  he  becomes  the  master  of  servants. 
This  contrivance  of  the  National  Banks,  instituted  for  other 
and  additional  public  purposes,  and  serving  these  great 
public  needs,  immediately  takes  in  its  hands  hundreds  of 
millions  of  Federal  stocks  with  which  to  serve  the  Govern 
ment,  and  in  its  hands,  and  in  the  hands  of  nobody  else  in 
this  country,  they  can  be  taxed  through  the  medium  of 
shareholders!  At  this  moment  these  banks  hold  six  hun 
dred  and  twenty-two  millions  of  dollars  of  the  Federal 
securities  of  the  United  States, — a  third  of  the  debt  that  is 
out  in  any  other  shape  than  that  of  mere  currency,  perhaps 
more  than  a  third,  for  I  have  not  the  statistics  in  my  mind; 
and  yet  that  mass  of  public  debt,  free  by  impression  on  its 
face  from  taxation  by  the  States,  free  in  the  hands  of  every 
individual,  of  every  corporation,  of  every  association,  must 
contribute  such  taxes  as  the  States  may  choose  to  impose, 
discriminating  or  destructive  or  otherwise,  simply  because 
one  agency  of  the  Government  is  helping  it  in  the  advance 
ment  of  its  interests  in  another  public  matter,  to  wit,  the 
debt! 

If  the  Court  please,  it  will  not  avail  anything  to  meet 
these  propositions  by  the  argument  that  the  States,  by 
their  natural  authority,  have  dominion  for  taxation  over 
every  subject  of  property  and  every  person  within  their 
jurisdiction.  This  right  and  this  power,  as  necessary  parts 
of  the  State's  sovereignty,  are  conceded;  for  it  is  idle  to  talk 
of  taxation  as  being  a  special  prerogative  of  sovereignty.  It 

24 


338         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

is  sovereignty.  It  is  the  sovereign  that  taxes.  It  is  as 
universal  as  the  sovereign.  "The  decree  went  out  that 
all  the  world  should  be  taxed,"  because  the  Roman  empire 
extended  over  what  was  then  called  the  world.  Taxation 
takes  all  you  have.  Put  taxation  and  conscription  together 
and  it  is  the  sovereignty  over  the  person  and  the  property, 
to  the  extent  of  the  jurisdiction  of  the  State.  But  the  taxa 
tion  goes  no  further  than  sovereignty;  and  whatever  im 
pedes  or  qualifies  or  displaces  the  sovereignty  of  the  States, 
impedes,  qualifies,  displaces,  taxation  by  the  States.  What 
power  there  is  in  taxation  to  destroy,  is  shown  by  the  recent 
Act  of  Congress  inimical  to  the  continuance  of  the  State 
banks,  which  taxes  their  circulation,  after  a  certain  prospec 
tive  period,  ten  per  cent.  If  a  State  has  power  to  tax, 
there  is  no  limit.  That  you  have  decided  over  and  over 
again.  It  can  tax  these  shares  discriminately,  if  it  chooses; 
hostilely,  destructively,  fatally,  if  you  concede  the  power. 
You  say,  with  jealous  preservation  of  the  Constitution, 
"There  is  no  such  power";  and  the  State  says,  "True,  but 
we  will  tax  the  shares  or  parts  hostilely,  destructively, 
fatally";  and  you  are  called  upon  to  say  that  they  can;  you 
are  called  upon  to  surrender,  as  I  say,  to  this  dominant 
fiction  in  law,  the  personality  of  a  corporation.  As  by  the 
decisions  is  expressly  stated,  whenever  the  Government 
has  called  the  property  of  the  citizens  into  the  service  of 
the  United  States,  in  the  performance  of  a  public  duty  under 
the  Constitution  as  an  instrument  and  an  agency,  that  be 
comes  an  instrument  of  the  United  States,  and  exempted 
from  State  taxation,  unless  it  be  compatible  with  the  public 
interests  that  the  Government  of  the  United  States  should 
concede  it.  There  are  but  two  methods  to  deal  with  this 
subject.  One  is  that  which  the  State  of  New  York  has  al 
ways  avowed,  and,  I  believe,  honestly  intended  to  conform 
to.  Looking  at  it  from  the  side  of  the  State,  it  may  differ 
from  the  view  that  is  taken  on  the  side  of  the  Federal  Gov- 


BANK  TAX  CASE  339 

ernment,  but  still  the  principles  laid  down  in  23  New  York 
Reports  by  Chief  Judge  Denio  are,  that,  when  there  is  a 
conflict,  the  adjudications  of  the  Supreme  Court  of  the 
United  States  are  final  as  to  the  supremacy  of  the  Federal 
power,  and  that  the  only  question  for  a  State  Court,  as  new 
circumstances  one  after  another  present  new  cases,  is  to  see 
whether  there  is  a  conflict,  and  to  yield.  There  is  but  one 
other  method;  and  that  is  the  method  of  South  Carolina,  in 
the  decisions  that  are  cited  on  the  briefs.  The  argument  of 
Mr.  Grimke  for  the  United  States,  than  which  none  abler  was 
ever  made  on  this  question,  was  never  answered  by  Mr. 
Legare,  nor  was  it  ever  answered  by  the  Court.  The  deci 
sion  was  put  upon  the  ground,  that,  if  there  was  a  conflict, 
the  State  of  South  Carolina  could  not  help  it,  but  it  governed 
what  was  within  its  own  dominions.  That  was  the  proposi 
tion  : — that  the  reasoning  of  the  Supreme  Court,  by  the  mouth 
of  the  great  Chief  Justice,  was  vicious,  unsound,  dangerous. 
Its  only  viciousness  was,  that  the  supremacy  of  the  Union 
over  the  States  was  asserted;  its  only  unsoundness  was, 
that  the  supremacy  of  the  Union  over  the  States  was  as 
serted;  its  only  danger  was,  that  the  supremacy  of  the  Union 
over  the  States  was  asserted;  and  this,  the  South  Carolina 
method  of  dealing  with  the  conflict,  as  we  all  know  at  last, 
is  war. 


V 

ARGUMENT,  IN  DEFENCE  OF  THE  PRESIDENT, 
BEFORE  THE  SENATE  OF  THE  UNITED 
STATES  SITTING  AS  A  COURT  UPON  THE 
IMPEACHMENT  OF  ANDREW  JOHNSON, 
PRESIDENT  OF  THE  UNITED  STATES 

NOTE 

On  the  21st  day  of  February,  1868,  President  Johnson  addressed 
a  note  to  the  Secretary  of  War,  Edwin  M.  Stanton,  stating  that, 
by  virtue  of  the  power  and  authority  vested  in  the  President  under 
the  Constitution  and  Laws,  Mr.  Stanton  was  removed  from  the 
office  of  Secretary  of  War,  and  he  was  directed  to  turn  over  the  office 
to  General  Lorenzo  Thomas,  who  had  been  authorized  by  the 
President  to  act  as  Secretary  of  War  ad  interim.  This  action  of  the 
President  was  considered  by  the  House  of  Representatives  as  in 
direct  contravention  of  what  was  known  as  the  Tenure  of  Office 
Act,  passed  March  2,  1867,  which  had  undertaken  to  regulate  the 
tenure  of  office  of  appointees  in  the  Executive  Departments  of  the 
Government.  It  was  further  considered  as  displaying,  on  the  part 
of  the  President,  the  deliberate  purpose  and  intent  to  set  himself 
above  the  Constitution  and  beyond  the  Law. 

The  removal  of  Secretary  Stanton  and  the  appointment  of  Gen 
eral  Thomas  to  act  as  Secretary  ad  interim  brought  about  the  culmi 
nation  of  the  struggle  between  Congress  and  the  President,  that 
had  been  in  progress  for  almost  the  whole  period  of  Mr.  John 
son's  occupancy  of  the  presidency.  This  contest,  between  the 
Executive  and  the  Legislative  branches  of  the  Government,  arose 
from  the  effort  to  solve  the  great  problem  of  the  reconstruction 
of  the  Southern  States  and  their  re-establishment  in  the  Union 
after  the  close  of  the  Civil  War.  All  of  this  forms  an  instructive 
chapter  in  our  Constitutional  history  and  the  passage  of  the 
Tenure  of  Office  Act  was  itself  but  one  of  the  steps  taken  by  Con 
gress  to  assure  its  supremacy. 

Immediately  following  this  action  of  the  President,  and  on  Feb- 

340 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  341 

ruary  24,  the  House  of  Representatives,  by  the  overwhelming 
vote  of  126  to  47,  impeached  the  President  for  high  crimes  and  mis 
demeanors. 

The  President's  action  in  the  removal  of  Secretary  Stanton  and 
the  appointment  of  General  Thomas  not  only  brought  the  strug 
gle  to  a  head,  but  formed  the  gravamen  of  the  Articles  of  Impeach 
ment  that  were  presented  at  the  bar  of  the  Senate  on  March  4, 1868, 

These  Articles  were  eleven  in  number.  The  first  eight  articles 
are  based  wholly  on  this  action  of  the  President.  The  ninth 
known  as  the  Emory  Article,  charged  a  conspiracy  between  the 
President  and  General  Emory  to  violate  a  recent  Act  of  Congress 
that  required  all  orders  and  instructions  relating  to  military  opera 
tions,  issued  by  the  President  or  Secretary  of  War,  to  be  issued 
through  the  General  of  the  army  and,  in  case  of  his  inability, 
through  the  next  in  rank.  The  tenth  article  related  to  a  number 
of  speeches  delivered  by  the  President  in  the  summer  and  fall  of 
1866,  in  which  he  had  given  vent  to  his  anger  at  the  attitude  of 
Congress,  in  most  unwise  and  hasty  expressions  of  contempt  for 
the  legislative  branch  of  the  Government  as  it  was  then  composed. 
The  eleventh  article  was  a  statement  in  a  different  form  of  the 
substance  of  many  of  the  averments  in  the  preceding  articles,  and 
in  general  charged  an  effort  on  the  part  of  the  President  to  obstruct 
and  prevent  the  due  execution  of  the  laws  of  Congress. 

After  answer  and  replication  the  actual  trial  before  the  Senate 
sitting  to  try  the  impeachment,  with  the  Chief  Justice  of  the 
United  States  presiding,  began  on  March  30,  1868. 

The  Managers  chosen  by  the  House  of  Representatives  to  con 
duct  the  prosecution  in  its  behalf  were:  John  A.  Bingham  of  Ohio, 
George  S.  Boutwell  of  Massachusetts,  James  F.  Wilson  of  Iowa, 
Benjamin  F.  Butler  of  Massachusetts,  Thomas  Williams  of  Penn 
sylvania,  Thaddeus  Stevens  of  Pennsylvania,  and  John  A.  Logan 
of  Illinois. 

The  Counsel  for  the  President  were  Henry  Stanbery  (the  Attor 
ney-General),  Benjamin  R.  Curtis,  William  M.  Evarts,  Thomas 
A.  R.  Nelson  and  William  S.  Groesbeck;  Jeremiah  S.  Black,  also 
retained  by  the  President,  had  retired  from  the  case  before  the 
trial  began. 

The  case  was  opened  by  General  Butler,  in  behalf  of  the  Man- 


342         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

agers,  who  proceeded  in  the  conduct  of  the  trial  throughout — in 
the  examination  and  cross-examination  of  witnesses.  Upon  the 
close  of  the  case  against  the  President,  Judge  Curtis  made  the 
opening  argument  for  the  defense  on  April  9  and  10,  and,  when 
the  taking  of  testimony  was  finished,  the  closing  arguments  by 
the  Managers  and  by  Counsel  for  the  President  began.  These 
arguments  occupied  the  attention  of  the  Court  of  Impeachment 
continuously  for  a  period  of  two  weeks,  from  April  22  to  May  6. 

Mr.  Logan  filed  with  the  Court  a  printed  argument,  all  the 
others  being  oral  and  in  the  following  order :  Mr.  Boutwell  spoke 
April  22d  and  during  a  part  of  the  following  day,  when  Mr.  Nelson, 
of  Counsel  for  the  President,  began  his  closing  argument,  conclud 
ing  April  24th.  On  Saturday,  April  25,  Mr.  Groesbeck  spoke 
for  the  President.  On  Monday,  April  27,  Mr.  Stevens  spoke  for 
the  Managers,  succeeded  by  Mr.  Williams  who  concluded  his  argu 
ment  the  following  day. 

Mr.  Evarts  began  his  argument  on  the  afternoon  of  April  28, 
continuing  on  the  three  succeeding  days,  closing  on  Friday  the 
first  of  May.  The  Attorney-General,  Mr.  Stanbery,  then  pro 
ceeded  with  the  final  Argument  for  the  President,  concluding 
the  next  day.  Mr.  Bingham,  in  his  argument  of  three  days,  May, 
4,  5  and  6,  on  behalf  of  the  Managers,  made  the  final  presenta 
tion  to  the  Senate. 

The  voting  on  the  articles  did  not  begin  until  ten  days  later, 
May  16,  when  a  vote  was  taken  on  the  eleventh  article,  resulting 
in  35  voting  "guilty"  and  19  "not  guilty."  Thus  the  two-thirds 
vote  required  by  the  Constitution  for  conviction  was  not  obtained. 
An  adjournment  was  taken  to  May  26  and  votes  taken  on  the 
second  and  third  articles  with  the  same  result  as  before.  The 
Senate,  sitting  as  a  Court  of  Impeachment,  then  adjourned  sine 
die,  taking  no  action  upon  any  of  the  remaining  articles. 

Mr.  Evarts,  besides  making  the  closing  argument  in  the  Presi 
dent's  behalf,  which  follows,  had  been  most  active  in  the  conduct 
of  the  defence  owing  to  the  illness,  during  the  trial,  of  the  Attor 
ney-General. 

Six  years  after  this  historic  trial,  Mr.  Evarts  thus  alludes  to  it, 
in  his  Eulogy  on  Chief  Justice  Chase,  with  especial  reference  to 
the  conduct  of  the  Chief  Justice  as  presiding  at  the  trial : 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  343 

"The  first  political  impeachment  in  our  constitutional  history, 
involving,  as  it  did,  the  accusation  of  the  President  of  the  United 
States,  required  the  Chief  Justice  to  preside  at  the  trial  before  the 
Senate,  creating  thus  the  tribunal  to  which  the  Constitution  had 
assigned  this  high  jurisdiction.  Beyond  the  injunction  that  the 
Senate,  when  sitting  for  the  trial  of  impeachments,  should  be  *  on 
Oath '  the  Constitution  gave  no  instruction  to  fix  or  ascertain  the 
character  of  the  procedure,  the  nature  of  the  duty  assigned  to  the 
specially-organized  court,  or  the  distribution  of  authority  between 
the  Chief  Justice  and  the  Senate.  The  situation  lacked  no  feature 
of  gravity — no  circumstance  of  solicitude — and  the  attention  of 
the  whole  country,  and  of  foreign  nations,  watched  the  transaction 
at  every  stage  of  its  progress.  No  circumstance  could  present  a 
greater  disparity  of  political  or  popular  forces  between  accuser  and 
accused,  and  none  could  be  imagined  of  more  thorough  commit 
ment  of  the  body  of  the  court — the  Senate — both  in  the  interests 
of  its  members,  in  their  political  feeling,  and  their  prejudgments; 
all  tending  to  make  the  condemnation  of  the  President,  upon  all 
superficial  calculations,  inevitable.  The  effort  of  the  Constitution 
to  guard  against  mere  partisan  judgment,  by  requiring  a  two-thirds 
vote  to  convict,  was  paralyzed  by  the  complexion  of  the  Senate, 
showing  more  than  four-fifths  of  that  body  of  the  party  which  had 
instituted  the  impeachment  and  was  demanding  conviction.  To 
this  party,  as  well,  the  Chief  Justice  belonged,  as  a  founder,  a 
leader,  a  recipient  of  its  honors,  and  a  lover  of  its  prosperity  and  its 
fame.  The  President,  raised  to  the  office  from  that  of  Viee-Presi- 
dent — to  which  alone  he  had  been  elected — by  the  deplored  event 
of  Mr.  Lincoln's  assassination,  was  absolutely  without  a  party,  in 
the  Senate  or  in  the  country;  for  the  party  whose  suffrages  he  had 
received  for  the  vice-presidency  was  the  hostile  force  in  his  im 
peachment.  And  to  bring  the  matter  to  the  worst,  the  succession 
to  all  the  executive  power  and  patronage  of  the  Government,  in 
case  of  conviction,  was  to  fall  into  the  administration  of  the  Presi 
dent  of  the  Senate — the  creature,  thus,  of  the  very  court  invested 
with  the  duty  of  trial  and  the  power  of  conviction. 

"Against  all  these  immense  influences,  confirmed  and  inflamed 
by  a  storm  of  party  violence,  beating  against  the  Senate-house 
without  abatement  through  the  trial,  the  President  was  acquitted. 


344         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

To  what  wise  or  fortunate  protection  of  the  stability  of  govern 
ment  does  the  people  of  this  country  owe  its  escape  from  this  great 
peril?  Solely,  I  cannot  hesitate  to  think,  to  the  potency — with  a 
justice-loving,  law-respecting  people— of  the  few  decisive  words  of 
the  Constitution  which,  to  the  common  apprehension,  had  im 
pressed  upon  the  transaction  the  solemn  character  of  trial  and  con 
viction,  under  the  sanction  of  the  oath  to  bind  the  conscience,  and 
not  of  the  mere  exercise  of  power,  of  which  its  will  should  be  its 
reason.  In  short,  the  Constitution  had  made  the  procedure  judi 
cial,  and  not  political.  It  was  this  sacred  interposition  that  stayed 
this  plague  of  political  resentments  which,  with  their  less  sober  and 
intelligent  populations,  have  thwarted  so  many  struggles  for  free 
government  and  equal  institutions. 

"Over  this  scene,  through  all  its  long  agitations,  the  Chief  Jus 
tice  presided,  with  firmness  and  prudence,  with  circumspect  com 
prehension,  and  sagacious  forecast  of  the  vast  consequences  which 
hung,  not  upon  the  result  of  the  trial  as  affecting  any  personal 
fortunes  of  the  President,  but  upon  the  maintenance  of  its  char 
acter  as  a  trial — upon  the  prevalence  of  law,  and  the  supremacy  of 
justice,  in  its  methods  of  procedure,  in  the  grounds  and  reasons  of 
its  conclusion.  That  his  authority  was  greatly  influential  in  fixing 
the  true  constitutional  relations  of  the  Chief  Justice  to  the  Senate, 
and  establishing  a  precedent  of  procedure  not  easily  to  be  sub 
verted;  that  it  was  felt,  throughout  the  trial,  with  persuasive  force, 
in  the  maintenance  of  the  judicial  nature  of  the  transaction;  and 
that  it  never  went  a  step  beyond  the  office  which  belonged  to  him — 
of  presiding  over  the  Senate  trying  an  impeachment — is  not  to  be 
doubted. 

"The  President  was  acquitted.  The  disappointment  of  the 
political  calculations,  which  had  been  made  upon  what  was  felt  by 
the  partisans  of  impeachment  to  be  an  assured  result,  was  un 
bounded;  and  resentments  rash  and  unreasoning  were  visited  upon 
the  Chief  Justice,  who  had  influenced  the  Senate  to  be  judicial,  and 
had  not  himself  been  political.  No  doubt  this  impeachment  trial 
permanently  affected  the  disposition  of  the  leading  managers  of 
the  Republican  party  towards  the  Chief  Justice,  and  his  attitude 
thereafter  toward  that  party,  in  his  character  of  a  citizen.  But 
the  people  of  the  country  never  assumed  any  share  of  the  resent- 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  345 

ment  of  party  feeling.  The  charge  against  him,  if  it  had  any  shape 
or  substance,  came  only  to  this:  That  the  Chief  Justice  brought 
into  the  Senate,  under  his  judicial  robes,  no  concealed  weapons  of 
party  warfare,  and  that  he  had  not  plucked  from  the  Bible,  on 
which  he  took  and  administered  the  judicial  oath,  the  command 
ment  for  its  observance." 

ARGUMENT 
FIRST  DAY,  APRIL  28,   1868 

I  am  sure,  Mr.  Chief  Justice  and  Senators,  that  no  man 
of  a  thoughtful  and  considerate  temper  would  wish  to  take 
any  part  in  the  solemn  transaction  which  proceeds  to-day 
unless  held  to  it  by  some  quite  perfect  obligation  of  duty. 
Even  if  we  were  at  liberty  to  confine  our  solicitudes  within 
the  horizon  of  politics;  even  if  the  interests  of  the  country 
and  of  the  party  in  power,  and  if  duty  to  the  country  and 
duty  to  the  party  in  power  (as  is  sometimes  the  case,  and 
as  public  men  so  easily  persuade  themselves  is,  or  may  be, 
the  case  in  any  juncture),  were  commensurate  and  equiva 
lent,  who  will  provide  a  chart  and  compass  for  the  wide, 
uncertain  sea  that  lies  before  us  in  the  immediate  future? 
Who  shall  determine  the  currents  that  shall  flow  from  the 
event  of  this  stupendous  political  controversy;  who  measure 
their  force;  and  who  assume  to  control  the  storms  that  it 
may  breed? 

But  if  we  enlarge  the  scope  of  our  responsibility  and  of  our 
vision,  and  take  in  the  great  subjects  that  have  been  con 
stantly  pressing  upon  our  minds,  who  is  there  so  sagacious 
in  human  affairs,  who  so  confident  of  his  sagacity,  who  so 
circumspect  in  treading  among  grave  responsibilities  and 
so  assured  of  his  circumspection,  who  so  bold  in  his  forecast 
of  the  future,  and  so  approved  in  his  prescience,  as  to  see, 
and  to  see  clearly,  through  this  day's  business? 

Let  us  be  sure,  then,  that  no  man  should  be  here  as  a 
volunteer  or  lift  a  little  finger  to  jostle  the  struggle  and  con- 


346         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

test  between  the  great  forces  of  our  Government,  of  which 
we  are  witnesses,  in  which  we  take  part,  and  which  we,  in 
our  several  vocations,  are  to  assist  in  determining. 

Of  the  absolute  and  complete  obligation  which  convenes 
the  Chief  Justice  of  the  United  States  and  its  Senators  in 
this  Court  for  the  trial  of  this  impeachment,  and  of  its  authen 
tic  commission  from  the  Constitution,  there  can  be  no 
doubt.  So,  too,  of  the  deputed  authority  of  these  honorable 
managers,  and  their  presence  in  obedience  to  it,  and  the 
attendance  of  the  House  of  Representatives  itself  in  aid  of 
their  argument  and  their  appeal,  there  is  as  little  doubt. 
The  President  of  the  United  States  is  here,  in  submission  to 
the  same  Constitution,  in  obedience  to  it,  and  in  the  duty 
which  he  owes  by  the  obligation  he  has  assumed  to  preserve, 
protect,  and  defend  it.  The  right  of  the  President  to  appear 
by  counsel  of  his  choice  makes  it  as  clearly  proper,  under  the 
obligations  of  a  liberal  profession,  and  under  the  duty  of  a 
citizen  of  a  free  state  of  sworn  fidelity  to  the  Constitution 
and  the  laws,  that  we  should  attend  upon  his  defence;  for 
though  no  distinct  vocation  and  no  particular  devotion  to 
the  more  established  forms  of  public  service  hovers  our 
presence,  yet  no  man  can  be  familiar  with  the  course  of  the 
struggles  of  law,  of  government,  of  liberty  in  the  world,  not 
to  know  that  the  defence  of  the  accused  becomes  the  trial 
of  the  Constitution  and  the  protection  of  the  public  safety. 

It  is  neither  by  a  careless  nor  capricious  distribution  of 
the  most  authentic  service  to  the  state  that  Cicero  divides 
it  among  those  who  manage  political  candidacies,  among 
those  who  defend  the  accused,  and  among  those  who  in  the 
Senate  determined  the  grave  issues  of  war  and  peace  and  all 
the  business  of  the  State;  for  it  is  in  facts  and  instances  that 
the  people  are  taught  their  Constitution  and  their  laws, 
and  it  is  by  fact  and  on  instances  that  their  laws  and  their 
Constitutions  are  upheld  and  improved.  Constitutions 
are  framed;  laws  established;  institutions  built  up;  the  pro- 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  347 

cesses  of  society  go  on  until  at  length  by  some  opposing, 
some  competing,  some  contending  forces  in  the  State,  an  indi 
vidual  is  brought  into  the  point  of  collision,  and  the  clouds 
surcharged  with  the  great  forces  of  the  public  welfare  burst 
over  his  head.  It  is  then  that  he  who  defends  the  accused, 
in  the  language  of  Cicero,  and  in  our  own  recognition  of  the 
pregnant  instances  of  English  and  American  history,  is  held 
to  a  distinct  public  service. 

As,  then,  duty  has  brought  us  all  here  to  this  august  pro 
cedure  and  has  assigned  to  each  of  us  his  part  in  it,  so  through 
all  its  responsibilities  and  to  the  end  we  must  surrender  our 
selves  to  its  guidance.  Thus  following,  our  footsteps  shall 
never  falter  or  be  misled ;  and  leaning  upon  its  staff,  no  man 
need  fear  that  it  will  break  or  pierce  his  side. 

The  service  of  the  constitutional  procedure  of  impeach 
ment  in  our  brief  history  as  a  nation  has  really  touched  none 
of  the  grave  interests  that  are  involved  in  the  present  trial. 
Discarding  the  first  occasion  in  which  it  was  moved,  being 
against  a  member  of  the  Senate,  as  coming  to  nothing  im 
portant,  political  or  judicial,  unless  to  determine  that  a 
member  of  this  body  was  not  an  officer  of  the  United  States; 
and  the  next  trial,  wherein  the  accusation  against  Judge 
Pickering  partook  of  no  qualities  except  of  personal  delin 
quency  or  misfortune,  and  whose  result  gives  us  nothing  to 
be  proud  of,  and  to  constitutional  law  gives  no  precedent 
except  that  an  insane  man  may  be  convicted  of  crime  by  a 
party  vote;  and  the  last  trial  of  Judge  Humphreys,  where 
there  was  no  defence,  and  where  the  matters  of  accusation 
were  so  plain  and  the  guilt  so  clear  that  it  was  understood 
to  be,  by  accused,  accusers,  and  court  but  a  mere  formality, 
and  we  have  trials,  doubtless  of  interest,  of  Judge  Chase 
and  of  Judge  Peck.  Neither  of  these  ever  went  for  a  mo 
ment  beyond  the  gravity  of  an  important  and  solemn  accusa 
tion  of  men  holding  dignified,  valuable,  eminent,  public 
judicial  trusts;  and  their  determination  in  favor  of  the  ac- 


348         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

cused  left  nothing  to  be  illustrated  by  their  trials  except  that 
even  when  the  matter  in  imputation  and  under  investiga 
tion  is  wholly  of  personal  fault  and  misconduct  in  office, 
politics  will  force  itself  into  the  tribunal. 

But  what  do  we  behold  here?  Why,  Mr.  Chief  Justice 
and  Senators,  all  the  political  power  of  the  United  States 
of  America  is  here.  The  House  of  Representatives  is  here 
as  accuser;  the  President  of  the  United  States  is  here  as  the 
accused;  and  the  Senate  of  ihe  United  States  is  here  as 
the  court  to  try  him,  presided  over  by  the  Chief  Justice,  under 
the  special  constitutional  duty  attributed  to  him.  These 
powers  of  our  Government  are  here,  this  our  Government  is 
here,  not  for  a  pageant  or  a  ceremony;  not  for  concord  of  ac 
tion  in  any  of  the  duties  assigned  to  the  Government  in  the 
conduct  of  the  affairs  of  the  nation,  but  here  in  the  struggle 
and  contest  as  to  whether  one  of  them  shall  be  made  to  bow 
by  virtue  of  constitutional  authority  confided  to  the  others, 
and  this  branch  of  the  political  power  of  the  United  States 
shall  prove  his  master.  Crime  and  violence  have  placed 
all  portions  of  our  political  Government  at  some  disadvantage. 
The  crime  and  violence  of  the  rebellion  have  deprived  this 
House  of  Representatives  and  this  Senate  of  the  full  attend 
ance  of  members  that  might  make  up  the  body  under  the 
Constitution  of  the  United  States,  when  it  shall  have  been 
fully  re-established  over  the  whole  country.  The  crime  and 
violence  of  assassination  have  placed  the  executive  office  in 
the  last  stage  of  its  maintenance  under  mere  constitutional 
authority.  There  is  no  constitutional  elected  successor  of 
the  President  of  the  United  States,  taking  his  power  under 
the  terms  of  the  Constitution  and  by  the  authority  of  the 
suffrage;  and  you  have  now  before  you  the  matter  to  which 
I  shall  call  your  attention,  not  intending  to  anticipate  here 
the  discussion  of  constitutional  views  and  doctrines,  but 
simply  the  result  upon  the  Government  of  the  country  which 
may  flow  from  your  determination  of  this  cause  under  the 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  349 

peculiar  circumstances  in  which,  for  the  first  time,  too,  in 
the  history  of  the  Government,  a  true  political  trial  takes 
place. 

If  you  shall  acquit  the  President  of  the  United  States 
from  this  accusation  all  things  will  be  as  they  were  before. 
The  House  of  Representatives  will  retire  to  discharge  their 
usual  duties  in  legislation,  and  you  will  remain  to  act  with 
them  in  those  duties  and  to  divide  with  the  President  of  the 
United  States  the  other  associated  duties  of  an  executive 
character  which  the  Constitution  attributes  to  you.  The 
President  of  the  United  States,  too,  dismissed  from  your 
presence  uncondemned,  will  occupy  through  the  constitu 
tional  term  his  place  of  authority,  and  however  ill  the  course 
of  politics  may  go,  or  however  well,  the  Government  and  its 
Constitution  will  have  received  no  shock.  But  if  the  Presi 
dent  shall  be  condemned,  and  if  by  authority  under  the 
Constitution  necessarily  to  be  exerted  upon  such  con 
demnation,  he  shall  be  removed  from  office,  there  will  be 
no  President  of  the  United  States;  for  that  name  and  title 
is  accorded  by  the  Constitution  to  no  man  who  has  not  re 
ceived  the  suffrages  of  the  people  for  the  primary  or  the  al 
ternative  elevation  to  that  place.  A  new  thing  will  have 
occurred  to  us;  the  duties  of  the  office  will  have  been  annexed 
to  some  other  office,  will  be  discharged  virtute  officii  and  by 
the  tenure  which  belongs  to  the  first  office.  Under  the 
legislation  of  the  country  early  adopted,  and  a  great  puzzle 
to  the  Congress,  that  designation  belongs  to  this  Senate 
itself  to  determine,  by  an  officer  of  its  own  gaining,  the  right 
under  the  legislation  of  1792  to  add  to  his  office  conferred 
by  the  Senate  the  performance  of  the  duties  of  President  of 
the  United  States,  the  two  offices  running  along.  What 
ever  there  may  be  of  novelty,  whatever  of  disturbance,  in 
the  course  of  public  affairs  thus  to  arise  from  a  novel  situa 
tion,  is  involved  in  the  termination  of  this  cause;  and  there 
fore  there  is  directly  proposed  to  you,  as  a  necessary  result 


350         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

from  one  determination  of  this  cause,  this  novelty  in  our 
Constitution :  a  great  nation  whose  whole  frame  of  Govern 
ment,  whose  whole  scheme  and  theory  of  politics  rest  upon 
the  suffrage  of  the  people  will  be  without  a  President,  and 
the  office  sequestered  will  be  discharged  by  a  member  of  the 
body  whose  judgment  has  sequestered  it. 

I  need  not  attract  your  attention,  long  since  called  to  it 
doubtless,  in  your  own  reflections,  more  familiar  than  I  am 
with  the  routine,  to  what  will  follow  in  the  exercise  of  those 
duties;  and  you  will  see  at  once  that  the  situation,  from  cir 
cumstances  for  which  no  man  is  responsible,  is  such  as  to 
bring  into  the  gravest  possible  consequences  the  act  that 
you  are  to  perform.  If  the  President  of  the  United  States, 
elected  by  the  people,  and  having  standing  behind  him  the 
second  officer  of  the  people's  choice,  were  under  trial,  no 
such  disturbance  or  confusion  of  constitutional  duties,  and 
no  such  shock  upon  the  feelings  and  traditions  of  the  people, 
would  be  effected;  but,  as  I  have  said,  crime  and  violence, 
for  which  none  of  the  agents  of  the  Government  are  i  espon- 
sible,  have  brought  us  into  this  situation  of  solicitude  and  of 
difficulty. 

It  will  be  seen,  then,  that  as  this  trial  brings  the  legisla 
tive  power  of  the  Government  confronted  with  the  executive 
authority,  and  its  result  is  to  deprive  the  nation  of  a  Presi 
dent  and  to  vest  the  office  in  the  Senate,  it  is  indeed  the  trial 
of  the  Constitution;  over  the  head  and  in  the  person  of 
the  Chief  Magistrate  who  fills  the  great  office  the  forces  of 
this  contest  are  gathered,  and  this  is  the  trial  of  the  Con 
stitution;  and  neither  the  dignity  of  the  great  office  which  he 
holds,  nor  any  personal  interest  that  may  be  felt  in  one  so 
high  in  station,  nor  the  great  name  and  force  of  these  ac 
cusers,  the  House  of  Representatives,  speaking  for  "all  the 
people  of  the  United  States,"  nor  the  august  composition  of 
this  tribunal,  which  brings  together  the  Chief  Justice  of  the 
great  court  of  the  country  and  the  Senators  who  have  States 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  351 

for  iheir  constituents,  which  recalls  to  us  in  the  mere  eti 
quette  of  our  address  the  combined  splendors  of  Roman  and 
of  English  jurisprudence  and  power — not  even  this  spectacle 
forms  any  important  part  in  the  watchful  solicitude  with 
which  the  people  of  this  country  are  gazing  upon  this  pro 
cedure.  The  sober,  thoughtful  people  of  this  country,  never 
fond  of  pageants  when  pageants  are  the  proper  thing,  never 
attending  to  pageants  when  they  cover  real  issues  and  inter 
ests,  are  thinking  of  far  other  things  than  these. 

Mr.  Chief  Justice,  it  is  but  a  few  weeks  since  the  great 
tribunal  in  which  you  habitually  preside,  and  where  the  law 
speaks  with  authority  for  the  whole  nation,  adjourned. 
Embracing,  as  it  does,  the  great  province  of  international 
law,  the  great  responsibility  of  adjusting  between  State 
and  General  Government  the  conflicting  interests  and  pas 
sions  belonging  to  our  composite  system,  and  with  deter 
mining  the  limits  between  the  co-ordinate  branches  of  the 
Government,  there  is  one  other  duty  assigned  to  it  in  which 
the  people  of  the  country  feel  a  nearer  and  a  deeper  interest. 
It  is  as  the  guardian  of  the  bill  of  rights  of  the  Constitution, 
as  the  watchful  protector  of  the  liberties  of  the  people  against 
the  encroachments  of  law  and  Government,  that  the  people 
of  the  United  States  look  to  the  Supreme  Court  with  the 
greatest  attention  and  with  the  greatest  affection.  That 
Court  having  before  it  a  subject  touching  the  liberty  of  the 
citizen  finds  the  hamstring  of  its  endeavor  and  its  energy  to 
interpose  the  power  of  the  Constitution  in  the  protection  of 
the  Constitution  cut  by  the  sharp  edge  of  a  congressional 
enactment,  and  in  its  breast  carries  away  from  the  judgment- 
seat  the  Constitution  and  the  law,  to  be  determined,  if  ever, 
at  some  future  time  and  under  some  happier  circumstances. 

Now,  in  regard  to  this  matter,  the  people  of  the  United 
States  give  grave  attention.  They  exercise  their  supervi 
sion  of  the  conduct  of  all  their  agents,  of  whom,  in  any  form 
and  in  any  capacity  and  in  any  majesty,  they  have  not  yet 


352         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

learned  to  be  afraid.     The  people  of  this  country  have  had 
nothing  in  their  experience  of  the  last  six  years  to  make  them 
fear  anybody's  oppression,  anybody's  encroachments,  any 
body's  assaults,  anybody's  violence,  anybody's  war.     Mas 
ters  of  this  country,  and  masters  of  every  agent  and  agency 
in  it,  they  bow  to  nothing  but  the  Constitution,  and  they 
honor  every  public  servant  that  bows  to  the  Constitution. 
And  at  the  same  time,  by  the  action  of  the  same  Congress, 
the  people  see  the  President  of  the  United  States  brought 
as  a  criminal  to  your  bar,  accused  by  one  branch  of  Congress, 
to  be  tried  by  the  other,  his  office,  as  I  have  said,  to  be  put  in 
commission  and  an  election  ordered.     He  greatly  mistakes 
who  supposes  that  the   people  of  the  United  States  look 
upon  the  office  of  President,  the  great  name  and  power  that 
represents  them  in  their  collective  capacity,  in  their  united 
power,  in  their  combined  interests,  with  less  attachment 
than  upon  any  other  of  the  departments  of  this  Government. 
The  President  is,  in  the  apprehension  and  in  the  custom  of 
the  people  of  the  United  States,  the  magistrate,  the  author 
ity  for  whom  they  have  that  homage  and  that  respect 
which  belong  to  the  elective  office.     His  oath  of  office  is  as 
familiar  to  the  people  of  this  country  as  it  is  to  you,  for 
they  heard  it  during  the  perils  of  the  war  from  lips  that  they 
revered,  and  they  have  seen  its  immense  power  under  the 
resources  of  this  Constitution  of  theirs,   and  supported  by 
their  fidelity  to  maintain  the  contest  of  this  Government 
against  all  comers  to  sustain  the  Constitution  and  the  law. 
It  has  been  spoken  of  here  as  if  the  President's  oath  were 
simply  an  oath  to  discharge  faithfully  the  duties  of  his  office, 
and  as  if  the  principal  duty  of  the  office  was  to  execute  the 
laws  of  Congress.     Why,  that  is  not  the  President's  oath; 
that  portion  of  it  is  the  common  oath  of  everybody  in  au 
thority  to  discharge  the  duties  of  his  office;  but  the  peculiar 
oath  of  the  President,  the  oath  of  the  Constitution,  is  in  the 
larger  portion  of  it  which  makes  him  the  sworn  preserver, 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  353 

protector,  and  defender  of  the  Constitution  itself;  and  that  is 
an  office  and  that  is  an  oath  which  the  people  of  the  United 
States  have  intrusted  and  exacted  to  and  from  no  other 
public  servant  but  the  President  of  the  United  States. 
And  when  they  conferred  that  power  and  exacted  that  duty 
they  understood  its  tremendous  responsibilities,  the  tremen 
dous  oppositions  it  might  encounter,  and  they  understood 
their  duty,  implied  in  the  suffrage  that  had  conferred  the 
authority  and  exacted  the  obligation,  to  maintain  him  in  it — 
to  maintain  him  in  it  as  against  foreign  aggression,  as  against 
domestic  violence,  as  against  encroachments  from  whatever 
quarter,  under  the  guise  of  congressional  or  whatever 
authority,  upon  the  true  vigor  of  the  Constitution  of  the 
United  States. 

President  Lincoln's  solemn  declaration,  upon  which  he 
gained  strength  for  himself  and  by  which  he  gave  strength  to 
the  people,  "I  have  a  solemn  vow  registered  in  heaven 
that  I  will  preserve,  protect,  and  defend  the  Constitution 
of  the  United  States,"  carried  him,  and  carried  the  people 
following  him,  through  the  struggles,  the  dangers,  the  vicis 
situdes  of  the  rebellion;  and  that  vow,  as  a  legend,  now 
adorns  the  halls  of  legislation  in  more  than  one  State  of  the 
Union.  This  oath  of  the  President,  this  duty  of  the  Presi 
dent,  the  people  of  this  country  do  not  in  the  least  regard 
as  personal  to  him;  but  it  is  an  oath  and  a  duty  assumed 
and  to  be  performed  as  their  representative,  in  their  interest, 
and  for  their  honor;  and  they  have  determined,  and  they 
will  adhere  to  their  determination,  that  the  oath  shall  not 
be  taken  in  vain,  for  that  little  phrase,  "to  the  best  of  my 
ability,"  which  is  the  modest  form  in  which  the  personal 
ob'igation  is  assumed,  means,  when  conferred  upon  the 
ability  of  the  President,  the  ability  of  the  country;  and  most 
magnificently  did  the  people  pour  out  its  resources  in  aid  of 
that  oath  of  President  Lincoln;  and  so  when  the  shock 
comes,  not  in  the  form  of  violence,  of  war,  of  rebellion,  but 

25 


354         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

of  a  struggle  between  the  forces  of  the  Government  in  regard 
to  constitutional  authority,  the  people  of  the  United  States 
regard  the  President  as  then  bound  to  the  special  fidelity  of 
watching  that  all  the  departments  of  this  Government  obey 
the  Constitution,  as  well  as  that  he  obeys  it  himself. 

They  give  him  no  assumption  of  authority  beyond  the 
laws  and  the  Constitution,  but  all  the  authority  and  all  the 
resources  of  the  laws  and  the  Constitution  are  open  to  him, 
and  they  will  see  to  it  that  the  President  of  the  United 
States,  whoever  he  may  be,  in  regard  to  the  office  and  its 
duty,  shall  not  take  this  oath  in  vain  if  they  have  the  power 
to  maintain  him  in  its  performance.  That  indeed  the 
Constitution  is  above  him,  as  it  is  above  all  of  the  servants 
of  the  people,  as  it  is  above  the  people  themselves  until 
their  sovereignty  shall  choose  to  change  it,  they  do  not  doubt. 
And  thus  all  their  servants,  President  and  Congress  and 
whatever  authority,  are  watched  by  the  people  of  the  United 
States  in  regard  to  obedience  to  the  Constitution. 

And,  not  disputing  the  regularity,  the  complete  authen 
ticity,  and  the  adequate  authority  of  this  entire  procedure, 
from  accusation  through  trial  and  down  to  sentence,  the 
people  yet  claim  the  right  to  see  and  to  know  that  it  is  duty 
to  the  Constitution  observed  and  felt  throughout  that  brings 
the  result,  whatever  it  may  be.  Thus  satisfied,  they  adhere 
to  the  Constitution,  but  they  do  not  purpose  to  change  it. 
They  are  converts  of  no  theories  of  congressional  omnipo 
tence.  They  understand  none  of  the  nonsense  of  the  Consti 
tution  being  superior  to  the  law  except  that  the  law  must  be 
obeyed  and  the  Constitution  not.  They  know  their  Gov 
ernment,  and  they  mean  to  maintain  it;  and  when  they 
hear  that  this  tremendous  enginery  of  impeachment  and 
trial  and  threatened  conviction  or  sentence,  if  the  law  and 
the  facts  will  justify  it,  has  been  brought  into  play,  that  this 
power  which  has  lain  in  the  Constitution,  like  a  sword  in  its 
sheath,  is  now  drawn,  they  wish  to  know  what  the  crime  is 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  355 

that  the  President  is  accused  of.  They  understand  that 
treason  and  bribery  are  great  offences,  and  that  a  ruler 
guilty  of  them  should  be  brought  into  question  and  deposed. 
They  are  ready  to  believe  that,  following  the  law  of  that 
enumeration,  there  may  be  other  great  crimes  and  mis 
demeanors  touching  the  conduct  of  Government  and  the 
welfare  of  the  State  that  may  equally  fall  within  the  juris 
diction  and  the  duty.  But  they  wish  to  know  what  the 
crimes  are.  They  wish  to  know  whether  the  President  has 
betrayed  our  liberties  or  our  possessions  to  a  foreign  State. 
They  wish  to  know  whether  he  has  delivered  up  a  fortress  or 
surrendered  a  fleet.  They  wish  to  know  whether  he  has 
made  merchandise  of  the  public  trust  and  turned  authority 
to  private  gain.  And  when  informed  that  none  of  these 
things  are  charged,  imputed,  or  even  declaimed  about,  they 
yet  seek  further  information  and  are  told  that  he  has  re 
moved  a  member  of  his  cabinet. 

The  people  of  this  country  are  familiar  with  the  removal 
of  members  of  cabinets  and  all  persons  in  authority.  That, 
on  its  mere  statement,  does  not  strike  them  as  a  grave  offence, 
needing  the  interposition  of  this  special  jurisdiction.  Re 
moval  from  office  is  not,  with  the  people  of  this  country, 
especially  those  engaged  in  politics,  a  terror  or  a  disagree 
able  subject;  indeed  it  may  be  said  that  it  maintains  a  great 
part  of  the  political  forces  of  this  country;  that  removal 
from  office  is  a  thing  in  the  Constitution,  in  the  habit  of 
its  administration.  I  remember  to  have  heard  it  said  that  an 
old  lady  once  summed  up  an  earnest  defence  of  a  stern 
dogma  of  Galvanism,  that  if  you  took  away  her  "  total  de 
pravity"  you  took  away  her  religion  and  there  are  a  great 
many  people  in  this  country  that  if  you  take  away  removal 
from  office  you  take  away  all  their  politics.  So  that,  on 
that  mere  statement,  it  does  not  strike  them  as  either  an 
unprecedented  occurrence  or  as  one  involving  any  great 
danger  to  the  State. 


356         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

"Well,  but  how  comes  it  to  be  a  crime?"  they  inquire. 
Why,  Congress  passed  a  law,  for  the  first  time  in  the  history 
of  the  Government,  undertaking  to  control  by  law  this 
matter  of  removal  from  office;  and  they  provided  that  if  the 
President  should  violate  it,  it  should  be  a  misdemeanor,  and 
a  high  misdemeanor;  and  now  he  has  removed,  or  undertaken 
to  remove,  a  member  of  his  cabinet,  and  he  is  to  be  removed 
himself  for  that  cause.  He  undertook  to  make  an  ad  interim 
Secretary  of  War,  and  you  are  to  have  made  for  you  an  ad 
interim  President  in  consequence! 

That  is  the  situation.  "Was  the  Secretary  of  War  re 
moved?"  they  inquire.  No;  he  was  not  removed,  he  is  still 
Secretary,  still  in  possession  of  the  department.  Was 
force  used?  Was  violence  meditated,  prepared,  attempted, 
applied?  No,  it  was  all  on  paper,  and  all  went  no  further 
than  making  the  official  attitude  out  of  which  a  judgment 
of  the  Supreme  Court  could  be  got.  And  here  the  Congress 
intercepting  again  and  in  reference  to  this  great  office,  this 
great  authority  of  the  Government,  instead  of  the  liberty 
of  the  private  citizen,  recourse  to  the  Supreme  Court, — has 
interposed  the  procedure  of  trial  and  impeachment  of  the 
President  to  settle,  by  its  own  authority,  this  question  be 
tween  it  and  the  Executive.  The  people  see  and  the  people 
feel  that  under  this  attitude  of  Congress  there  seems  to  be  a 
claim  of  right  and  an  exercise  of  what  is  supposed  to  be 
a  duty,  to  prevent  the  Supreme  Court  of  the  United  States 
interposing  its  serene  judgment  in  the  collisions  of  Govern 
ment  and  of  laws  upon  either  the  framework  of  the  Gov 
ernment  or  upon  the  condition  and  liberty  of  the  citizen. 
And  they  are  not  slow  to  understand,  without  the  aid  of  the 
very  lucid  and  very  brave  arguments  of  these  honorable 
managers,  that  it  is  a  question  between  the  omnipotence  of 
Congress  and  the  supremacy  of  the  Constitution  of  the 
United  States;  and  that  is  an  issue  on  which  the  people 
have  no  doubt,  and,  from  the  beginning  of  their  liberties, 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  357 

they  have  had  a  clear  notion  that  tyranny  was  as  likely  to 
be  exercised  by  a  Parliament  or  a  Congress  as  by  anybody 
else. 

The  honorable  managers  have  attracted  our  notice  to  the 
principles  and  the  motives  of  the  American  Revolution  as 
having  shown  a  determination  to  throw  off  the  tyranny  of  a 
king,  and  they  have  told  us  that  that  people  will  not  bend 
its  neck  to  the  usurpations  of  a  President.  That  people 
will  not  bend  its  neck  to  the  usurpations  of  anybody.  But 
the  people  of  the  United  States  know  that  their  fathers  went 
to  war  against  the  tyranny  of  Parliament,  claiming  to  be 
good  subjects  of  the  king  and  ready  to  recognize  his  author 
ity ,  preserving  their  own  legislative  independence,  and  against 
the  tyranny  of  Parliament  they  rebelled;  and,  as  a  neces 
sity  finally  of  securing  liberty  against  Parliament,  severed 
their  connection  with  the  mother  country;  and  if  any  hon 
orable  member  of  either  house  will  trace  the  working  of  the 
ideas  in  the  convention  that  framed  the  Constitution  of  the 
United  States,  he  will  discover  that  inordinate  power  which 
should  grow  up  to  tyranny  in  the  Congress  was  more  feared, 
more  watched,  more  provided  against  than  any  other 
extravagance  that  the  workings  of  our  Government  might 
be  supposed  possible  to  lead  to. 

Our  people,  then,  are  unwilling  that  our  Government 
should  be  changed;  they  are  unwilling  that  the  date  of  our 
Constitution's  supremacy  should  be  fixed,  and  that  any 
department  of  this  Government  should  grow  too  strong  or 
claim  to  be  too  strong  for  the  restraints  of  the  Constitution. 
If  men  are  wise  they  will  attain  to  what  was  sagacious,  and 
if  obeyed  in  England  might  have  saved  great  political  shocks, 
and  which  is  true  for  our  obedience  and  for  the  adoption  of 
our  people  now  as  it  was  then.  Said  Lord  Bacon  to  Buck 
ingham,  the  arbitrary  minister  of  James  I: 

As  far  as  it  may  lie  in  you,  let  no  arbitrary  power  be  intruded; 
the  people  of  this  kingdom  love  the  laws  thereof,  and  nothing  will 


358         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

oblige  them  more  than  a  confidence  of  the  free  enjoyment  of  them; 
what  the  nobles  upon  an  occasion  once  said  in  Parliament,  Nolumus 
leges  Anglice  mutari,  is  imprinted  in  the  hearts  of  all  the  people. 
(1  Bacon's  Works,  p.  712.) 

And  in  the  hearts  of  all  the  people  of  this  country  the  su 
premacy  of  the  Constitution  and  obedience  to  it  are  im 
printed,  and  whatever  progress  new  ideas  of  parliamentary 
government  instead  of  executive  authority  dependent  upon 
the  direct  suffrage  of  the  people  may  have  been  made  with 
theorists  or  with  statesmen,  they  have  made  no  advance 
whatever  in  the  hearts  or  in  the  heads  of  the  people  of  this 
country. 

I  know  that  there  are  a  good  many  persons  who  believe 
that  a  written  constitution  for  this  country,  as  for  any  other 
nation,  is  only  for  a  nascent  state  and  not  for  one  that  has 
acquired  the  pith  and  vigor  of  manhood.  I  know  that  it  is 
spoken  of  as  the  swathing  bands  that  may  support  and 
strengthen  the  puny  limbs  of  infancy,  but  shame  and  en 
cumber  the  maturity  of  vigor.  This  I  know,  and  in  either 
house  I  imagine  sentiments  of  that  kind  have  been  heard 
during  the  debates  of  the  last  two  Congresses;  but  that  is 
not  the  feeling  or  the  judgment  of  the  people;  and  this  in 
their  eyes,  in  the  eyes  of  foreign  nations,  in  the  eyes  of  the 
enlightened  opinion  of  mankind,  is  the  trial  of  the  Consti 
tution,  not  merely  in  that  inferior  sense  of  the  determina 
tion  whether  its  powers  accorded  to  one  branch  or  other  of 
the  Government  have  this  or  that  scope  and  impression  and 
force,  but  whether  a  government  of  a  written  constitution 
can  maintain  itself  in  the  forces  prescribed  and  attributed  by 
the  fundamental  law,  or  whether  the  immense  passions  and 
interests  of  a  wealthy  and  powerful  and  populous  nation  will 
force  asunder  all  the  bonds  of  the  Constitution,  and  in  the 
struggle  of  strength  and  weight  the  natural  forces,  uncurbed 
by  the  supreme  reason  of  the  state,  will  determine  the  suc 
cess  of  one  and  the  subjection  of  the  other. 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  359 

Now,  Senators,  let  us  see  to  it  that  in  this  trial  and  this 
controversy  we  understand  what  is  at  stake  and  what  is  to 
be  determined.  Let  us  see  to  it  that  we  play  our  part  as  it 
should  be  played  and  under  the  motives  and  for  the  interests 
that  should  control  statesmen  and  judges.  If,  indeed,  this, 
our  closely  cinctured  liberty,  is  at  last  to  loosen  her  zone, 
and  her  stern  monitor,  law,  debauched  and  drunken  with 
this  new  wine  of  opinion  that  is  crushed  daily  from  ten 
thousand  presses  throughout  this  land,  is  to  withdraw  its 
guardianship,  let  us  be  counted  with,  those  who,  with  averted 
eye  and  reverent  step  backward,  seek  to  veil  this  shameless 
revelry,  and  not  with  those  who  exult  and  cheer  at  its 
excesses.  Let  us  so  act  as  that  what  we  do  and  what  we 
purpose  and  what  we  wish  shall  be  to  build  up  the  State,  to 
give  new  stability  to  the  forces  of  the  Government,  to  cure 
the  rash  passions  of  the  people,  so  that  it  may  be  said  of 
each  one  of  us,  ad  rempublicam  firmandam  et  ad  stabiliendas 
vires  et  sanandum  populum  omnis  ejus  purgebat  institutio. 

Thus  acting,  thus  supported,  doubt  not  the  result  shall  be 
in  accord  with  these  high  aspirations,  these  noble  impulses, 
these  exalted  duties;  and  whether  or  no  the  forces  of  this 
Government  shall  feel  the  shock  of  this  special  jurisdiction 
in  obedience  to  law,  to  evidence,  to  justice,  to  duty,  then 
you  will  have  built  up  the  Government,  amplified  its  author 
ity,  and  taught  the  people  renewed  homage  to  authority. 

And  now,  this  brings  me,  Mr.  Chief  Justice  and  Senators, 
to  an  inquiry  asked  very  early  in  this  cause  with  emphasis 
and  discussed  with  force,  with  learning,  and  with  persis 
tence,  and  that  is,  is  this  a  court?  I  must  confess  that  I  have 
heard  defendants  arguing  that  they  were  coram  non  judice 
before  somebody  that  was  not  a  judge,  but  I  never  heard  till 
now  of  a  plaintiff  or  a  prosecutor  coming  in  and  arguing  that 
there  was  not  any  court,  and  that  his  case  was  coram  non 
judice.  Nobody  is  wiser  than  the  intrepid  manager  who 
assumed  the  first  assault  upon  this  Court,  and  he  knew  that 


360         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

the  only  way  he  could  prevent  his  cause  from  being  turned 
out  of  court  was  to  turn  the  court  out  of  his  cause  and  if  the 
expedient  succeeds  his  wisdom  will  be  justified  by  the  result, 
and  yet  it  would  be  a  novelty.  It  is  said: 

There  is  no  word  in  the  Constitution  which  gives  the  slightest 
coloring  to  the  idea  that  this  is  a  court,  except  that  in  this  particu 
lar  case  the  Chief  Justice  must  preside. 

So  that  the  Chief  Justice's  gown  is  the  only  shred  or  patch 
of  justice  that  there  is  within  these  halls;  and  it  is  only  acci 
dentally  that  that  is  here,  owing  to  the  peculiar  character 
of  the  inculpated  defendant. 

This  is  a  Senate  to  hold  an  inquest  of  office  upon  Andrew  Johnson. 

And  I  suppose,  therefore,  to  find  a  verdict  of  "office 
found."  Certainly,  it  is  sought  for.  I  have  not  observed 
in  your  rule  that  each  Senator  is  to  rise  in  his  place  and  say 
"office  found,"  or  "office  not  found."  Probably  every 
Senator  does  not  expect  to  find  it.  Your  rules,  your  Consti 
tution,  your  habit,  your  etiquette  call  it  a  court,  assume  that 
there  is  some  procedure  here  of  a  judicial  nature;  and  we 
found  out  finally  on  our  side  of  this  controversy  that  it  was 
so  much  of  a  court  at  least  that  we  could  not  put  a  leading 
question  in  it;  and  that  is  about  the  extreme  exercise  of  the 
authority  of  a  court  in  regard  to  the  conduct  of  procedure 
that  we  lawyers  habitually  discover. 

The  Constitution,  as  has  been  pointed  out  to  you,  makes 
this  a  court;  it  makes  its  proceeding  a  trial;  it  assigns  a 
judgment;  it  accords  a  power  of  punishment  to  its  procedure; 
and  it  provides  that  a  jury  in  all  judicial  proceedings  of  a 
criminal  character  shall  be  necessary  except  in  this  Court 
and  on  this  form  of  procedure.  We  may  assume,  then,  that 
so  far  as  words  go,  it  is  a  court  and  nothing  but  a  court. 

But  it  is  a  question,  the  honorable  manager  says,  "of 
substance,  and  not  of  form."  He  concedes  that  if  it  be  a 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  361 

court  you  must  find  upon  the  evidence  something  to  make 
out  the  guilt  of  the  offender  to  secure  a  judgment,  and  he 
argues  against  its  being  a  court,  not  from  any  nice  criticism 
of  words  or  form,  but,  as  he  expresses  it,  for  the  substance. 
He  has  instructed  you,  by  many  references,  and  by  an  inter 
esting  and  learned  brief  appended  to  his  opening  speech,  in 
English  precedents  and  authority  to  show  that  it  is  almost 
anything  but  a  court;  and  perhaps  during  the  hundreds  of 
years  in  which  the  instrument  of  impeachment  was  used  as 
a  political  engine,  if  you  look  only  to  the  judgment  and  the 
reasons  of  the  judgment,  you  would  not  think  it  was  really 
a  very  judicial  proceeding;  but  that  through  all  the  English 
history  it  was  a  proceeding  in  court,  controlled  by  the 
rules  of  the  court  as  a  court,  cannot  be  doubted. 

Indeed,  as  we  all  know,  though  the  learned  manager  has 
not  insisted  upon  it,  the  presence  of  the  trial,  under  the  pecul 
iar  procedure  and  jurisdiction  of  impeachment  in  the  House 
of  Lords,  was  but  a  part  of  the  general  jurisdiction  of  the 
House  of  Lords,  as  the  great  court  of  the  kingdom,  in  all  mat 
ters  civil  and  criminal,  and  one  of  the  favorite  titles  of  the 
lords  of  Parliament  in  those  earlier  days  was  "judges  of 
Parliament;"  and  now  the  House  of  Lords  in  England  is  the 
supreme  court  of  that  country  as  distinctly  as  our  great 
tribunal  of  that  name  is  of  this  country. 

But  one  page  of  pretty  sound  authority,  I  take  it,  will 
put  to  flight  all  these  dreamy,  misty  notions  about  a  law  and 
procedure  of  Parliament  in  this  country  and  in  this  tribunal 
that  is  to  supersede  the  Constitution  and  the  laws  of  our 
country,  when  I  show  you  what  Lord  Chancellor  Thurlow 
thought  of  that  subject  as  prevalent  or  expected  to  prevail 
in  England.  In  Hastings's  trial,  Lord  Loughborough  hav 
ing  endeavored  to  demonstrate  that  the  ordinary  rules  of 
proceeding  in  criminal  cases  did  not  apply  to  parliamentary 
impeachments,  which  could  not  be  shackled  by  the  forms 
observed  in  the  courts  below,  Lord  Thurlow  said : 


362         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

My  lords,  with  respect  to  the  laws  and  usage  of  Parliament,  I 
utterly  disclaim  all  knowledge  of  such  laws.  It  has  no  existence. 
True  it  is,  in  times  of  despotism  and  popular  fury,  when  to  impeach 
an  individual  was  to  crush  him  by  the  strong  hand  of  power,  of 
tumult,  or  of  violence,  the  laws  and  usage  of  Parliament  were 
quoted  in  order  to  justify  the  most  iniquitous  or  atrocious  acts. 
But  in  these  days  of  light  and  Constitutional  Government,  I  trust 
that  no  man  will  be  tried  except  by  the  laws  of  the  land,  a  system 
admirably  calculated  to  protect  innocence  and  to  punish  crime. 

And  after  showing  that  in  all  the  state  trials  under  the 
Stuart  reigns,  and  even  down  to  that  of  Sachaverel,  in  every 
instance  were  to  be  found  the  strongest  marks  of  tyranny, 
injustice,  and  oppression,  Lord  Thurlow  continued: 

I  trust  your  lordships  will  not  depart  from  recognized,  established 
laws  of  the  land.  The  Commons  may  impeach,  your  lordships 
are  to  try  the  cause;  and  the  same  rules  of  evidence,  the  same  legal 
forms  which  obtain  in  the  courts  below,  will,  I  am  confident,  be 
observed  in  this  assembly.  (Wraxall's  Memoirs,  p.  275.) 

But  the  learned  manager  did  not  tell  us  what  this  was  if 
it  was  not  a  court.  It  is  true  he  said  it  was  a  Senate,  but 
that  conveys  no  idea.  It  is  not  a  Senate  conducting  legis 
lative  business;  it  is  not  a  Senate  acting  upon  executive 
business ;  it  is  not  a  Senate  acting  in  caucus  on  political 
affairs;  and  the  question  remains,  if  it  is  not  a  court  what  is  it? 
If  this  is  not  an  altar  of  justice  which  we  stand  about,  if  we 
are  not  all  ministers  here  of  justice,  to  feed  its  sacred  flame, 
what  is  the  altar  and  what  do  we  do  here  about  it?  It  is  an 
altar  of  sacrifice  if  it  is  not  an  altar  of  justice;  and  to  what 
divinity  is  this  altar  erected?  What,  but  the  divinity  of 
party  hate  and  party  rage,  a  divinity  to  which  we  may 
ascribe  the  Greek  character  given  of  envy,  that  it  is  at  once 
the  worst  and  the  justest  divinity,  for  it  dwarfs  and  withers 
its  worshippers.  That,  then,  is  the  altar  that  you  are  to 
minister  about,  and  that  the  savage  demon  you  are  to  exalt 
here  in  displacing  justice. 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  363 

Our  learned  managers,  representing  the  House  of  Repre 
sentatives,  do  not  seem  to  have  been  at  all  at  pains  to  con 
ceal  the  party  spirit  and  the  party  hate  which  displayed  it 
self  in  the  haste,  in  the  record,  and  in  the  maintenance  of 
this  impeachment.  To  show  you  what  progress  may  make 
in  the  course  of  thirty  years  in  the  true  ideas  of  the  Consti 
tution,  and  of  the  nature  of  impeachments,  let  me  read  to 
you  what  the  managers  of  the  impeachment  of  Judge  Peck 
had  to  say  in  his  behalf.  And  a  pretty  solid  body  of  man 
agers  they  were,  too:  Judge  Ambrose  Spencer,  of  New  York; 
Mr.  Henry  R.  Storrs,  of  New  York;  Mr.  McDuffie,  of  South 
Carolina;  Mr.  Buchanan,  of  Pennsylvania,  and  Mr.  Wickliffe, 
of  Kentucky.  Ambrose  Spencer,  as  stern  a  politician  as  he 
was  an  upright  judge,  opened  the  case,  and  had  a  word  to 
say  on  the  subject  of  party  spirit  and  party  hate.  Let  me 
ask  your  attention  to  it: 

There  is,  however,  one  cheering  and  consolatory  reflection. 
The  House  of  Representatives,  after  a  patient  and  full  examination, 
came  to  the  resolution  to  impeach  Judge  Peck  by  a  very  large 
majority;  and  the  record  will  show  an  absence  of  all  party  feeling. 
Could  I  believe  that  that  baleful  influence  had  mingled  itself  with 
and  predominated  in  that  vote,  no  earthly  consideration  could  have 
prevailed  on  me  to  appear  here  as  one  of  the  prosecutors  of  this 
impeachment.  I  have  not  language  to  express  the  abhorrence  of 
my  soul  at  the  indulgence  of  such  unhallowed  feelings  on  such  a 
solemn  procedure.  (Peck's  Trial,  p.  289.) 

Mr.  Manager  Butler  talked  to  you  many  hours.  Did  he 
say  anything  wiser,  or  juster,  or  safer  for  the  republic  than 
that?  Judge  Spencer  knew  what  it  was  to  be  a  judge  and 
to  be  a  politician.  For  twenty  years  while  he  was  on  the 
bench  of  New  York,  the  great  judicial  light  in  the  common- 
law  jurisdiction  of  that  State,  he  was  a  head  and  leader  of 
a  political  party,  vehement  and  earnest  and  unflinching  in 
support  of  its  measures  and  in  the  conduct  of  its  discipline; 
and  yet  no  lawyer,  no  suitor,  no  critic  ever  ventured  to  say, 


364         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

or  to  think,  or  to  feel  that  Judge  Spencer  on  the  bench  was 
a  politician  or  carried  any  trait  or  trace  of  party  feeling  or 
interest  there.  Judge  Spencer  was  a  politician  in  the  House 
of  Representatives  then;  but  Judge  Spencer  in  the  manage 
ment  of  an  impeachment  could  only  say  that  if  party  feeling 
mingled  in  it  he  would  have  nothing  to  do  with  it,  for  his 
soul  abhorred  it  in  relation  to  so  solemn  a  procedure. 
Yes,  indeed,  this  divinity  of  party  hate,  when  it  possess  a 
man,  throws  him  now  into  the  fire  and  now  into  the  water, 
and  he  is  unsuitable  to  be  a  judge  until  he  can  come  again 
clothed  and  in  his  right  mind  to  hear  the  evidence  and  admin 
ister  the  law. 

But  to  come  down  to  the  words  of  our  English  history  and 
experience,  if  this  is  not  a  court  it  is  a  scaffold,  and  an  hon 
orable  manager  yesterday  told  you  so,  that  each  one  of  you 
brandished  now  a  headsman's  axe  to  execute  vengeance, 
you  having  tried  the  offender  on  the  night  of  the  21st  of 
February  already.  I  would  not  introduce  these  bold 
words  that  should  make  this  a  scaffold,  in  the  eyes  of  the 
people  of  this  country,  and  you  headsmen  brandishing  your 
axes,  but  the  honorable  manager  has  done  so,  and  I  have 
no  difficulty  in  saying  to  you  that  if  you  are  not  a  court, 
then  you  are  that  which  he  described  and  nothing  else.  If 
it  be  true  that  on  the  night  of  the  21st  of  February,  upon 
a  crime  committed  by  the  President  at  midday  of  that  date 
and  on  an  impeachment  moving  already  forward  to  this 
chamber  from  the  House  of  Representatives,  you  did  hold  a 
court  and  did  condemn,  then  you  are  here  standing  about 
the  scaffold  of  execution,  and  the  part  that  you  are  to  play 
is  only  that  which  was  assigned  you  by  the  honorable  man 
ager,  Mr.  Stevens,  and  he  warned  you,  held  by  fealty  to  your 
own  judgments,  not  to  blench  at  the  sight  of  the  blood. 

Now,  to  what  end  is  this  prodigious  effort  to  expel  from 
this  tribunal  all  ideas  of  court  and  of  justice?  What  is  it 
but  a  bold,  reckless,  rash,  and  foolish  avowal  that  if  it  be  a 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  365 

court,  there  is  no  cause  here  that,  upon  judicial  reason,  upon 
judicial  scrutiny,  upon  judicial  weighing  and  balancing  of 
fact  and  of  law,  can  result  in  a  judgment  which  the  impeach 
ing  party  here,  the  managers  and  House  of  Representatives, 
demand  and  constitutionally  may  demand  to  be  done  by 
this  Court?  At  last,  to  what  end  are  the  wisdom,  and  the 
courage,  the  civil  prudence  and  the  knowledge  of  history 
which  our  fathers  brought  to  the  framing  of  the  Constitu 
tion;  of  what  service  this  wise,  this  honest  frown  in  the 
Constitution  upon  ex  post  facto  laws  and  bills  of  attainder? 
What  is  a  bill  of  attainder;  what  is  a  bill  of  pains  and  pen 
alties  in  the  experience  and  in  the  learning  of  English  juris 
prudence  and  parliamentary  history?  It  is  a  proceeding 
by  the  legislature,  as  a  legislature,  to  enact  crime,  sentence, 
punishment,  all  in  one.  And  certainly  there  is  no  alternative 
for  you;  if  you  do  not  sit  here  under  law  to  examine  evidence, 
to  be  impartial,  and  to  regard  it  as  a  question  of  personal 
guilt  to  be  followed  by  personal  punishment  and  personal 
consequences  upon  the  alleged  delinquent,  then  you  are 
enacting  a  bill  of  pains  and  penalties  upon  the  simple  form 
that  a  majority  of  the  House  and  two-thirds  of  the  Senate 
must  concur,  and  the  Constitution  and  the  wisdom  of  our 
ancestors  all  pass  for  nought. 

Our  ancestors  were  brave  and  wise,  but  they  were  not 
indifferent  to  the  dangers  that  attended  this  tribunal. 
They  had  no  resource  in  the  Constitution,  where  they  could 
so  well  fix  this  necessary  duty  in  a  free  Government  to  hold 
all  its  servants  amenable  to  public  justice,  for  the  public 
service, except  to  devolve  it  upon  this  Senate; but  let  me  show 
you  within  the  brief  compass  of  the  debate,  and  the  only 
material  debate,  in  the  Journal  of  the  Convention  that 
framed  the  Constitution,  how  the  fears  and  the  doubts 
predominated : 

Mr.  Madison  objected  to  a  trial  of  the  President  by  the  Senate, 
especially  as  he  was  to  be  impeached  by  the  other  branch  of  the 


366         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

legislature;  and  for  any  act  which  might  be  called  a  misdemeanor. 
The  President,  under  these  circumstances,  was  made  improperly 
dependent.  He  would  prefer  the  Supreme  Court  for  the  trial  of 
impeachments;  or,  rather,  a  tribunal  of  which  that  should  form  a 
part. 

Mr.  Gouverneur  Morris  thought  no  other  tribunal  than  the 
Senate  could  be  trusted.  The  Supreme  Court  were  too  few  in 
numbers,  and  might  be  warped  or  corrupted.  He  was  against  a 
dependence  of  the  Executive  on  the  legislature,  considering  the 
legislative  tyranny  the  great  danger  to  be  apprehended;  but  there 
could  be  no  danger  that  the  Senate  would  say  untruly,  on  their 
oaths,  that  the  President  was  guilty  of  crimes  or  facts,  especially 
as  in  four  years  he  can  be  turned  out. 

That  was  Gouverneur  Morris's  wisdom  as  to  the  extent  to 
which  the  Senate  might  be  trusted  under  the  sanctions  and 
obligations  of  judicial  oaths;  but — 

Mr.  Pinckney  disapproved  of  making  the  Senate  the  court  of 
impeachments,  as  rendering  the  President  too  dependent  on  the 
legislature.  If  he  opposes  a  favorite  law  the  two  houses  will 
combine  against  him,  and,  under  the  influence  of  heat  and  faction, 
throw  him  out  of  office.  (5  Madison  Papers,  p.  528.) 

There  is  the  sum  and  substance  of  the  wisdom  that  our 
ancestors  could  bring  to  the  subject  of  whether  this  was  to 
be,  or  could  be,  a  court.  It  is  undoubtedly  a  very  great 
burden  and  a  very  exhaustive  test  upon  a  political  body  to 
turn  it  into  a  court  for  the  trial  of  an  executive  official  in 
ordinary  circumstances.  I  shall  hereafter  point  out  to  you 
the  very  peculiar,  the  very  comprehensive  and  oppressive 
concurrence  and  combination  of  circumstances  as  bearing 
on  this  trial  that  require  of  you  to  brace  yourselves  upon 
all  the  virtue  that  belongs  to  you  and  to  hold  on  to  this  oath 
for  the  Divine  aid  that  may  support  you  under  this  most 
extraordinary  test  of  human  conduct  to  which  our  Constitu 
tion  subjects  you  to-day.  Now,  what  could  the  Constitution 
do  for  us?  A  few  little  words,  and  that  is  all — truth,  justice, 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  367 

oath,  duty.  And  what  does  the  whole  scope  of  our  moral 
nature  and  the  whole  support  we  may  hope  from  a  higher 
aid  extend  to  in  any  of  the  affairs  of  life  but  these?  Truth, 
justice,  oath,  duty  control  the  fate,  life,  liberty,  character, 
and  property  of  every  citizen.  Truth,  justice,  oath,  duty 
are  the  ideas  that  the  Constitution  has  forced  upon  your 
souls  to-day.  You  receive  them  or  you  neglect  them;  which 
ever  way  you  turn  you  cannot  be  the  same  men  afterward 
that  you  were  before.  Accepted,  embraced,  obeyed,  you  are 
nobler  and  stronger  and  better.  Spurned,  rejected,  you 
are  worse  and  baser  and  weaker  and  wickeder  than  before. 
And  it  is  thus  that  by  strong  ideas  a  free  Government  must 
always  be  held  to  the  path  of  duty  and  to  the  maintenance 
of  its  own  authority  and  to  the  prevalence  of  its  own  strength 
for  its  perpetual  existence. 

They  are  little  words,  but  they  have  great  power.  Truth 
is  to  the  moral  world  what  gravitation  is  to  the  material; 
it  is  the  principle  upon  which  it  is  established  and  coheres; 
and  justice  in  the  adaptation  of  truth  to  the  affairs  of  men 
is  in  human  life  what  the  mechanism  of  the  heavens  is  to 
the  principle  that  sustains  the  forces  of  the  globe.  Duty 
is  acceptance,  obedience  to  these  ideas,  and  this  once  gained 
secures  the  operation  which  was  intended.  When,  then, 
you  bend  submissive  to  this  oath,  that  faith  among  men 
which,  as  Burke  says,  "holds  the  moral  elements  of  the  world 
together,"  and  that  faith  in  God  which  binds  that  world  to 
His  throne,  subdue  you  to  the  service  of  truth  and  justice; 
and  the  ever-living  guardian  of  human  rights  and  interests 
does  not  neglect  what  is  essential  to  the  preservation  of  the 
human  race  and  its  advancement.  The  purity  of  the  family 
and  the  sanctity  of  justice  have  ever  been  cared  for,  and  will 
ever  be  cared  for.  The  furies  of  the  Greek  mythology  had 
charge  of  the  sanctions  of  an  oath.  The  imaginations  of 
the  prophets  of  the  world  have  sanctioned  the  solemnity  of 
an  oath,  and  peopled  the  place  of  punishment  with  oath- 


368         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

breakers;  and  all  the  tortures  and  torments  of  history  are 
applied  to  public  servants  who,  in  betrayal  of  sworn  trust, 
have  disobeyed  those  high,  those  necessitous  obligations 
without  which  the  whole  fabric  of  society  falls  in  pieces. 

I  do  not  know  why  or  how  it  is  that  we  are  so  constituted, 
but  so  it  is.  The  moral  world  has  its  laws  as  well  as  the 
material.  Why  a  point  of  steel  lifted  above  temple  or 
home,  should  draw  the  thunderbolt  and  speed  it  safely  to 
the  ground  I  know  not.  How,  in  our  moral  constitution, 
an  oath  lifted  to  heaven  can  draw  from  the  great  swollen 
cloud  of  passion  and  of  interest  and  of  hate  its  charge  I 
know  not,  but  so  it  is.  And  be  sure  that  loud  and  long  as 
these  honorable  managers  may  talk,  although  they  speak 
in  the  voice  of  "all  the  people  of  the  United  States,"  with 
their  bold  persuasions  that  you  shall  not  obey  a  judicial 
oath,  I  can  bring  against  it  but  a  single  sentence  and  a  single 
voice;  but  that  sentence  is  a  commandment  and  that  voice 
speaks  with  authority,  "Thou  shalt  not  take  the  name  of 
the  Lord  thy  God  in  vain,  for  the  Lord  will  not  hold  him 
guiltless  that  taketh  his  name  in  vain." 

The  moth  may  consume  the  ermine  of  that  supreme  jus 
tice  whose  robes  you  wear;  rust,  Senators,  may  corrode  the 
sceptre  of  your  power;  nay,  Messrs.  Managers,  time  even 
shall  devour  the  people  whose  presence  beating  against  the 
doors  of  this  Senate-house,  you  so  much  love  to  vaunt  and 
menace,  but  of  the  word  that  I  have  spoken  "heaven  and 
earth  shall  pass  away  and  no  jot  or  tittle  of  it  fail." 

I  have  now  reached,  Mr.  Chief  Justice  and  Senators,  a 
point  where  an  adjournment  would  be  agreeable,  if  such  is 
the  pleasure  of  the  Senate. 

SECOND  DAY,  APRIL  29,   1868 

Mr.  Chief  Justice  and  Senators,  if  indeed  we  have  arrived 
at  a  settled  conclusion  that  this  is  a  court,  that  it  is  gov 
erned  by  the  law,  that  it  is  to  confine  its  attention  to  the 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  369 

facts  applicable  to  the  law,  and  regard  the  sole  evidence  of 
those  facts  to  be  embraced  within  the  testimony  of  witnesses 
or  documents  produced  in  court,  we  have  made  great  prog 
ress  in  separating,  at  least,  from  your  further  consideration 
much  that  has  been  impressed  upon  your  attention  hereto 
fore. 

If  the  idea  of  power  and  will  is  driven  from  this  assembly, 
if  the  President  is  here  no  longer  exposed  to  attacks  upon  the 
same  principle  on  which  men  claim  to  hunt  the  lion  and 
harpoon  the  whale,  then,  indeed,  much  that  has  been  said 
by  the  honorable  managers,  and  much  that  is  urged  upon 
your  attention  from  so  many  quarters,  falls  harmless  in 
your  midst.  It  cannot  be  said  of  this  Senate,  fertur  numeris 
leges  solutis,  that  it  is  carried  by  numbers  unrestrained  by 
law.  On  the  contrary,  right  here  is  might  and  power;  and, 
as  its  servants  and  in  its  investigation  and  pursuit,  your  sole 
duty  is  exhausted.  It  follows  from  this  that  the  President 
is  to  be  tried  upon  the  charges  which  are  produced  here,  and 
not  upon  common  fame,  and  least  of  all  is  he  to  be  charged 
in  your  judgment,  as  he  has  been  inveighed  against  hour  after 
hour  in  argument,  upon  charges  which  the  impeaching  au 
thority  of  the  House  of  Representatives  deliberately  threw 
out  as  unworthy  of  impeachment  and  unsuitable  for  trial. 
We,  at  least,  when  we  have  an  indictment  brought  into  court 
and  another  indictment  ignored  and  thrown  out,  are  to  be 
tried  upon  the  former  and  not  upon  the  latter.  And  if,  on 
the  9th  of  December  of  the  last  year,  the  House  of  Represent 
atives,  with  whom,  by  the  Constitution,  rests  the  sole 
impeaching  power  under  this  Government,  by  a  vote  of  one 
hundred  and  seven  to  fifty-seven,  threw  out  all  the  topics 
that  fill  up  the  declamatory  addresses  of  the  learned  mana 
gers,  it  is  enough  for  me  to  say,  that  for  reasons  satisfactory 
to  that  authority,  the  House  of  Representatives,  that  bill 
was  thrown  out  and  those  charges  were  withheld. 

So,  too,  if  it  be  a  trial  on  public  prosecution,  and  with 

26 


370         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

the  ends  of  public  justice  alone  in  view,  the  ordinary  rule 
of  restraint  of  the  conduct  of  the  prosecuting  authorities 
applies  here;  and  I  do  not  hesitate  to  say  that  this  trial — 
to  be,  in  our  annals,  the  most  conspicuous  that  our  history 
will  present;  to  be  scrutinized  by  more  professional  eyes, 
by  the  attention  of  more  scholars  at  home  and  abroad;  to  be 
preserved  in  more  libraries;  to  be  judged  of  as  a  national 
trait,  a  national  scale,  a  national  criterion  forever — presents 
an  unexampled  spectacle  of  a  prosecution  that  overreaches 
judgment  from  the  very  beginning  and  inveighs  and  selects 
and  impugns  and  oppresses  as  if  already  convicted,  at  every 
stage,  the  victim  they  pursue.  The  duty,  the  constraint 
upon  a  prosecuting  authority  under  a  government  of  law  pur 
suing  only  the  public  justice,  is  scarcely  less  strict  and 
severe  than  that  which  rests  upon  the  judge  himself.  To 
select  evidence,  having  possession  of  better;  to  exclude 
evidence,  knowing  that  it  bears  upon  the  inquiry;  to  restrict 
evidence,  knowing  that  the  field  is  thus  closed  against  the 
true  point  of  justice,  is  no  part  of  a  prosecuting  authority's 
duty  or  power.  Whatever  may  be  permitted  in  the  private 
contests  of  the  forum,  in  the  zeal  of  contending  lawyers 
for  contending  clients,  there  is  no  such  authority,  no  such 
duty,  no  such  permission  by  our  laws  in  a  public  prosecu 
tion.  Much  less,  when  the  proofs  have  been  thus  kept 
narrow,  when  the  charges  are  thus  precise  and  technical,  is  it 
permissible  for  a  prosecuting  authority  to  enlarge  the  area 
of  declamation  and  invective.  Much  less  is  it  suitable  for  a 
public  prosecution  to  inspire  in  the  minds  of  the  Court 
prejudice  and  extravagance  of  jurisdiction  beyond  the 
points  properly  submitted. 

It  has  usually  been  supposed  that,  upon  actual  trials 
involving  serious  consequences,  forensic  discussion  was  the 
true  method  of  dealing  with  the  subject,  and  we  lawyers, 
appearing  for  the  President,  being,  as  Mr.  Manager  Boutwell 
has  been  polite  enough  to  say,  "attorneys  whose  practice  of 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  371 

the  law  has  sharpened  but  not  enlarged  their  intellects," 
have  confined  ourselves  to  that  method  of  forensic  discussion. 
But  we  have  learned  here  that  there  is  another  method  of 
forensic  controversy  which  may  be  called  the  method  of 
concussion.  I  understand  the  method  of  concussion  to  be 
to  make  a  violent,  noisy,  and  explosive  demonstration  in 
the  vicinity  of  the  object  of  attack,  whereas  the  method  of 
discussion  is  to  penetrate  the  position,  and  if  successful  to 
capture  it.  The  Chinese  method  of  warfare  is  the  method  of 
concussion,  and  consists  of  a  great  braying  of  trumpets, 
sounding  of  gongs,  shouts,  and  shrieks  in  the  neighborhood 
of  the  opposing  force,  which  rolled  away  and  the  air  clear 
and  calm  again,  the  effect  is  to  be  watched  for.  But  it  has 
been  reserved  for  us  in  our  modern  warfare,  as  illustrated 
during  the  rebellion,  to  present  a  more  singular  and  notable 
instance  of  the  method  of  warfare  by  concussion  than  has 
ever  been  known  before.  A  fort  impregnable  by  the  method 
of  discussion,  that  is,  penetrating  and  capturing  it,  has  been 
on  the  largest  scale  attempted  by  the  method  of  concussion, 
and  some  two  hundred  and  fifty  tons  of  gunpowder  in  a  hulk 
moored  near  the  stone  walls  of  the  fort  has  been  made  the 
means  and  the  occasion  of  this  vast  experiment.  Unsatisfied 
with  that  trial  and  its  result,  the  honorable  manager  who 
opened  this  case  [Mr.  Butler]  seems  to  have  repeated  the 
experiment  in  the  vicinity  of  the  Senate.  The  air  was  filled 
with  epithets,  the  dome  shook  with  invective.  Wretchedness 
and  misery  and  suffering  and  blood,  not  included  within  the 
record,  were  made  the  means  of  this  explosive  mixture.  And 
here  we  are,  surviving  the  concussion,  and  after  all  reduced 
to  the  humble  and  homely  method  of  discussion,  which  be 
longs  to  "attorneys  whose  intellects  have  been  sharpened 
but  not  enlarged  by  the  practice  of  law." 

In  approaching,  then,  the  consideration  of  what  consti 
tutes  impeachable  offences,  within  the  true  method  and  duty 
of  that  solemn  and  unusual  procedure  and  within  the  Con- 


372         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

stitution,  we  see  why  it  was  that  the  effort  was  to  make 
this  an  inquisition  of  office  instead  of  a  trial  of  personal  and 
constitutional  guilt;  for  if  it  is  an  inquest  of  office,  "  crowner's 
quest  law"  will  do  throughout  for  us,  instead  of  the  more 
solemn  precedents  and  the  more  dignified  authorities  and 
duties  which  belong  to  solemn  trial.  Mr.  Manager  Butler 
has  given  us  a  very  thorough  and  well-considered  suggestion 
of  what  constitutes  an  impeachable  offence.  Let  me  ask 
your  attention  to  it;  and  every  one  of  these  words  is  under 
scored  by  the  honorable  manager: 

We  define,  therefore,  an  impeachable  high  crime  or  misdemeanor 
to  be  one  in  its  nature  or  consequences  subversive  of  some  funda 
mental  or  essential  principle  of  government,  or  highly  prejudicial 
to  the  public  interest,  and  this  may  consist  of  a  violation  of  the 
Constitution,  of  law,  of  an  official  oath,  or  of  duty,  by  an  act  com 
mitted  or  omitted,  or,  without  violating  a  positive  law,  by  the  abuse 
of  discretionary  powers  from  improper  motives  or  for  any  im 
proper  purpose. 

See  what  large  elements  are  included  in  this,  the  manager's 
definition!  It  must  be  "subversive  of  some  fundamental 
or  essential  principle  of  government,"  "highly  prejudicial 
to  the  public  interest,"  and  must  proceed  from  "improper 
motives"  and  for  an  "improper  purpose."  That  was  in 
tended,  in  the  generality  of  its  terms,  to  avoid  the  necessity 
of  actual  and  positive  crime;  but  it  has  given  us  in  one  re 
gard  everything  that  is  needed  to  lift  the  peccability  of 
these  technical  offences  of  mere  statutory  infraction  out  of 
the  region  of  impeachable  offence.  It  is  not  that  you  may 
accuse  of  a  definite  and  formal  crime,  and  then  have  outside 
of  your  indictment,  not  covered  by  charge  or  admitted  for 
proof  or  countervailing  proof,  large  accusations  that  touch 
these  general  subjects,  but  that  the  act  under  inquiry, 
charged  and  proved  or  refuted  by  proof,  must  be  of  itself 
such  as,  within  its  terms  and  regular  and  natural  consequence, 
thus  touches  vital  interests  or  fundamental  principles. 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  373 

The  fallacy  of  these  general  qualifying  terms  is  in  making 
them  the  substance  of  the  crime  instead  of  the  conditions  of 
impeachability.  You  must  have  the  crime  definite  under 
law  and  Constitution,  and  even  then  it  is  not  impeachable 
unless  you  affect  it  with  some  of  the  public  and  general  and 
important  qualities  that  are  indicated  in  this  definition  of 
the  learned  and  honorable  manager. 

We  may  look,  perhaps,  at  the  statement  made  by  the  man 
agers  of  the  House  of  Representatives  on  this  subject  of  what 
constitutes  an  impeachable  offence  in  the  trial  of  Judge 
Peck,  Mr.  Buchanan,  of  Pennsylvania,  chairman  of  the  man 
agers,  being  the  speaker : 

What  is  an  impeachable  offence?  This  is  a  preliminary  ques 
tion  which  demands  attention.  It  must  be  decided  before  the 
Court  can  rightly  understand  what  it  is  they  have  to  try.  The 
Constitution  of  the  United  States  declares  the  tenure  of  the  judi 
cial  office  to  be  "during  good  behavior."  Official  misbehavior, 
therefore,  in  a  judge,  is  a  forfeiture  of  his  office;  but  when  we  say 
this  we  have  advanced  only  a  small  distance.  Another  question 
meets  us.  What  is  misbehavior  in  office?  In  answer  to  this  ques 
tion,  and  without  pretending  to  furnish  a  definition,  I  freely  ad 
mit  we  are  bound  to  prove  that  the  respondent  has  violated  the 
Constitution,  or  some  known  law  of  the  land.  This,  I  think,  was 
the  principle  fairly  to  be  deduced  from  all  the  arguments  on  the 
trial  of  Judge  Chase,  and  from  the  votes  of  the  Senate  in  the  ar 
ticles  of  impeachment  against  him.  (Peck's  Trial,  p.  427.) 

That  crime,  in  the  sense  of  substantial  guiltiness,  personal 
delinquency,  moral  opprobrious  blame,  is  included  even 
under  the  largest  and  most  liberal  accusation  that  was 
espoused  and  defended  by  the  managers  in  Hastings's  im 
peachment,  is  to  be  gathered  from  one  of  the  many  splendid 
passages  of  Burke's  invective  in  that  cause: 

As  to  the  crime  which  we  charge,  we  first  considered  well  what 
it  was  in  its  nature,  and  under  all  the  circumstances  which  attended 
it.  We  weighed  it  with  all  its  extenuations  and  with  all  its  aggra- 


374         SPEECHES  OF  WILLIAM  MAXWELL  EVARf S 

vations.  On  that  review  we  are  warranted  to  assert  that  the 
crimes  with  which  we  charge  the  prisoner  at  the  bar  are  substantial 
crimes;  that  they  are  no  errors  or  mistakes,  such  as  wise  and  good 
men  might  possibly  fall  into;  which  may  even  produce  very  per 
nicious  effects  without  being,  in  fact,  great  offences.  The  Com 
mons  are  too  liberal  not  to  allow  for  the  difficulties  of  a  great  and 
arduous  public  situation.  They  know  too  well  the  domineering 
necessities  which  frequently  occur  in  all  great  affairs.  They  know 
the  exigency  of  a  pressing  occasion  which  in  its  precipitate  career 
bears  everything  down  before  it,  which  does  not  give  time  to  the 
mind  to  recollect  its  faculties,  to  re-enforce  its  reason,  and  to 
have  recourse  to  fixed  principles,  but  by  compelling  an  instant 
and  tumultuous  decision  too  often  obliges  men  to  decide  in  a  man 
ner  that  calm  judgment  would  certainly  have  rejected.  We 
know,  as  we  are  to  be  served  by  men,  that  the  persons  who  serve 
us  must  be  tried  as  men,  and  with  a  very  large  allowance  indeed 
to  human  infirmity  and  human  error.  This,  my  lords,  we  knew, 
and  we  weighed  before  we  came  before  you.  But  the  crimes  which 
we  charge  in  these  articles  are  not  lapses,  defects,  errors  of  common 
human  frailty,  which,  as  we  know  and  feel,  we  can  allow  for.  We 
charge  this  offender  with  no  crimes  that  have  not  arisen  from  pas 
sions  which  it  is  criminal  to  harbor;  with  no  offences  that  have  not 
their  root  in  avarice,  rapacity,  pride,  insolence,  ferocity,  treachery, 
cruelty,  malignity  of  temper;  in  short,  in  nothing  that  does  not  argue 
a  total  extinction  of  all  moral  principle,  that  does  not  manifest  an 
inveterate  blackness,  dyed  ingrain  with  malice,  vitiated,  corrupted, 
gangrened  to  the  very  core.  If  we  do  not  plant  his  crimes  in  those 
vices  which  the  heart  of  man  is  made  to  abhor,  and  the  spirit  of 
all  laws,  human  and  divine,  to  interdict,  we  desire  no  longer  to 
be  heard  on  this  occasion.  Let  everything  that  can  be  pleaded 
on  the  ground  of  surprise  or  error  upon  those  grounds  be  pleaded 
with  success;  we  give  up  the  whole  of  those  predicaments.  We 
urge  no  crimes  that  are  not  crimes  of  forethought.  We  charge 
him  with  nothing  that  he  did  not  commit  upon  deliberation;  that 
he  did  not  commit  against  advice,  supplication,  and  remonstrance; 
that  he  did  not  commit  against  the  direct  command  of  lawful  au 
thority;  that  he  did  not  commit  after  reproof  and  reprimand,  the 
reproof  and  reprimand  of  those  who  are  authorized  by  the  laws  to 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  375 

reprove  and  reprimand  him.  The  crimes  of  Mr.  Hastings  are 
crimes  not  only  in  themselves,  but  aggravated  by  being  crimes  of 
contumacy.  They  were  crimes  not  against  forms,  but  against  those 
eternal  laws  of  justice  which  are  our  rule  and  our  birthright.  His 
offences  are  not  in  formal,  technical  language,  but  in  reality, 
in  substance  and  effect,  high  crimes  and  high  misdemeanors. 
(Burke's  Works,  vol.  7,  pp.  13,  14.) 

And  so  the  articles  charged  them,  not  leaving  it  to  the 
declamation  or  invention  of  the  orators  of  that  great  occa 
sion.  I  need  not  insist,  in  repetition  of  the  very  definite, 
concise,  and  I  must  think  effective  argument  of  the  learned 
counsel  who  opened  this  case  for  the  respondent  [Mr.  Cur 
tis],  upon  the  strict  constitutional  necessity,  under  the  clause 
prohibiting  ex  post  facto  laws,  and  under  the  clause  pro 
hibiting  bills  of  attainder,  and  under  the  clauses  that  fix 
the  trial  as  for  crime  in  the  Constitution  under  the  designa 
tion  in  the  articles  of  enumeration  of  "treason"  and  "brib 
ery"  alone,  the  highest  great  crimes  against  the  State  that 
can  be  imagined,  that  you  should  have  here  what  is  crime 
against  the  Constitution  and  crime  against  the  law,  and  then 
that  it  should  have  those  public  proportions  that  are  indi 
cated  in  the  definition  of  the  opening  manager,  and  those 
traits  of  freedom  from  error  and  mistake  and  doubt  and 
difficulty  which  belong,  in  the  language  of  Mr.  Burke,  to  an 
arduous  public  station.  And  then  you  will  perceive  that 
under  these  necessary  conditions  either  this  judgment  must 
be  arrived  at,  that  there  is  no  impeachable  offence  here 
which  covers  and  carries  with  it  these  conditions,  or  else 
that  the  evidence  offered  on  the  part  of  the  responden£ 
that  was  to  negative,  that  was  to  countervail,  that  was  to 
reduce,  that  was  to  refute  all  these  qualifications  should 
have  been  admitted;  and  when  a  court  like  this  has  excluded 
the  whole  range  of  evidence  relating  to  the  public  character 
of  the  accused  and  the  difficulties  of  an  arduous  public 
situation,  it  must  have  determined  that  the  crimes  charged 


376         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

do  not  partake  of  that  quality,  or  else  it  would  have  required 
them  to  have  been  affirmatively  supported  by  proofs  giving 
those  qualifications,  and  permitted  them  to  be  reduced  by 
countervailing  evidence.  And  when  a  court  sits  only  for  a 
special  trial,  when  its  proceedings  are  incapable  of  review, 
when  neither  its  law  nor  its  fact  can  be  dissected,  even  by 
reconsideration  within  its  own  tribunal,  the  necessary  con 
sequence  is  that,  when  you  come  to  make  up  your  judgment, 
either  you  must  take  as  for  granted  all  that  we  offered  to 
prove,  all  that  can  fairly  be  embraced  as  to  come  in,  in  form, 
in  substance,  in  color,  and  in  fact,  by  the  actual  production 
of  such  proof,  so  that  your  judgment  may  thus  proceed;  or 
else  it  is  your  duty  before  you  reach  the  irrevocable  step 
of  judgment  and  sentence  to  resume  the  trial  and  call  in 
the  rejected  evidence.  I  submit  it  to  you  that  a  court 
without  review,  without  new  trial,  without  exception,  and 
without  possible  correction  of  errors,  must  deal  with  evi 
dence  in  this  spirit  and  upon  this  rule.  And  unless  you  arrive, 
as  I  suppose  you  must,  at  the  conclusion  that  the  dimensions 
of  this  trial  relate  to  the  formal,  technical  infraction  of  the 
statute  law  that  has  been  adduced  in  evidence  here,  it  will 
be  your  duty  to  reopen  your  doors,  call  the  respondent 
again  before  you,  and  go  into  the  field  of  inquiry  that  has 
been  touched  in  declamation,  but  has  not  been  permitted  in 
proof. 

But  Mr.  Chief  Justice  and  Senators,  there  is  no  better 
mode  of  determining  whether  a  crime  accorded  to  a  particu 
lar  jurisdiction  and  embraced  within  a  particular  prohibition 
is  to  be  a  high  crime  and  misdemeanor,  and  what  a  high 
crime  and  misdemeanor  means,  and  what  the  lowest  level 
and  the  narrowest  limit  of  its  magnitude  and  of  its  height 
must  be,  than  to  look  at  its  punishment.  Epithets,  newly- 
invented  epithets,  used  in  laws  do  not  alter  the  substance  of 
things.  Your  legislation  of  the  2d  of  March,  1867,  introduc 
ing  into  a  statute  law  the  qualifying  word  "high,"  applied 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  377 

to  a  misdemeanor,  is  its  first  appearance  in  the  statute  law 
of  this  country  or  of  the  parent  country  from  whom  we  draw 
our  jurisprudence.  It  means  nothing  to  a  lawyer.  There 
is  in  the  conspiracy  act  of  1861  the  same  introduction  of  the 
word  "high"  as  applied  to  the  body  of  the  offence  there 
called  "a  crime."  A  "high  crime"  it  is  called  in  this  little 
conspiracy  act  of  1861,  and  there  in  the  one  instance  and 
here  in  the  other  an  epithet  is  thrown  into  an  act  of  Congress. 
But,  Mr.  Chief  Justice  and  Senators,  when  the  legislative 
authority  in  its  scale  of  punishment  makes  it,  as  the  common 
sense  of  mankind  considers,  great  in  its  penalty,  terrible  in 
its  consequences,  that  is  a  legislative  statement  of  what  the 
quality  of  the  crime  is.  When  you  put  into  a  statute  that 
the  offence  shall  be  punished  by  death  you  need  no  epithet 
to  show  that  that  is  a  great,  a  heinous  crime;  and  when  the 
framers  of  this  Constitution  put  into  it,  as  the  necessary 
result  of  the  trial  of  the  President  of  the  United  States  and 
his  conviction,  that  his  punishment  should  be  deprivation 
of  office,  and  that  the  public  should  suffer  the  necessity  of  a 
new  election,  that  showed  you  what  they  meant  by  "high 
crime  or  misdemeanor." 

I  know  that  soft  words  have  been  used  by  every  manager 
here  on  the  subject  of  the  mercy  of  our  Constitution  and  the 
smallness  of  the  punishment;  that  it  does  not  touch  life, 
limb,  or  property.  Is  that  the  sum  of  penalties?  Is  that 
the  measure  of  oppression  of  punishment?  Why,  you  might 
as  well  say  that  when  the  mother  feels  for  the  first  time  her 
new-born  infant's  breath,  and  it  is  snatched  from  her  and 
destroyed  before  her  eyes,  she  has  not  been  deprived  of  life, 
liberty,  or  property.  In  a  republic  where  public  spirit  is  the 
life,  and  where  public  virtue  is  the  glory  of  the  state,  and  in 
the  presence  of  public  men  possessing  great  public  talents, 
high  public  passions,  and  ambitions,  made  up,  as  this  body 
is,  of  men  sprung,  many  of  them,  from  the  ordinary  condi 
tion  of  American  life,  and  by  the  force  of  their  native  talents. 


378         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

and  by  the  high  qualities  of  endurance  and  devotion  to  the 
public  service,  who  have  lifted  themselves  into  this  eminent 
position,  if  not  the  envy,  the  admiration  of  all  their  country 
men,  it  is  gravely  proposed  to  you,  some  of  whom  from  this 
elevated  position  do  not  disdain  to  look  upon  the  presi 
dency  of  the  United  States  as  still  a  higher,  a  nobler,  a  greater 
office,  if  not  of  pride,  yet  of  duty,  that  you  shall  feel  and 
say  that  it  is  a  little  thing  to  take  a  President  from  his 
public  station  and  strike  him  to  the  ground,  branded  with 
high  crime  and  misdemeanor,  to  be  a  byword  and  reproach 
through  the  long  gauntlet  of  history  forever  and  forever. 
In  the  great  hall  of  Venice,  where  long  rows  of  doges  cover 
with  their  portraits  the  walls,  the  one  erased,  the  one  de 
featured  canvas  attracts  to  it  every  eye;  and  one  who  has 
shown  his  devotion  to  the  public  service  from  the  earliest  begin 
ning,  and  you  who  have  attended  in  equal  steps  that  same  as 
cent  upward,  and  now,  in  the  very  height  and  flight  of  your 
ambition,  feel  your  pinions  scorched  and  the  firm  sockets  of 
your  flight  melted  under  this  horrid  blaze  of  impeachment, 
are  to  be  told,  as  you  sink  forever,  not  into  a  pool  of  oblivion, 
but  of  infamy,  and  as  you  carry  with  you  to  your  posterity 
to  the  latest  generation  this  infamy,  that  it  is  a  trifling 
matter,  and  does  not  touch  life,  liberty,  or  property !  If 
these  are  the  estimates  of  public  character,  of  public  fame, 
and  of  public  disgrace  by  which  you,  the  leaders  of  this  coun 
try,  the  most  honored  men  in  it,  are  to  record  your  estimate 
of  the  public  spirit  and  of  the  public  virtue  of  the  American 
state,  you  have  indeed  written  for  the  youth  of  this  country 
the  solemn  lesson  that  it  is  dust  and  ashes. 

Now,  what  escape  is  there  from  this  conclusion,  in  every 
true  estimate  of  the  character  of  this  procedure  and  of  the 
result  that  you  seek  to  fasten  upon  this  President  if  justice 
requires  it,  to  say  that  it  is  trifling  and  trivial  and  that  formal 
and  technical  crime  may  lead  to  it?  Do  the  people  of  this 
country  expect  to  be  called  to  a  presidential  election  in  the 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  379 

middle  of  a  term,  altering  the  whole  calendar,  it  may  be,  of 
the  Government,  because  there  has  been  an  infraction  of  a 
penal  statute  carrying  no  consequences  beyond?  It  is 
accidental,  to  be  sure,  that  the  enforced  and  irregular  elec 
tion  that  may  follow  upon  your  sentence  at  this  time  con 
curs  with  the  usual  period  of  the  quadrennial  election;  but 
it  is  merely  accidental.  And  yet  these,  Senators,  are  gravely 
proposed  to  you  as  trivial  results  that  are  to  follow  from  a 
judgment  on  an  accusation  of  the  character  and  of  the  quality 
that  I  have  stated  in  fact,  as  compared  with  the  quality 
and  character  that  it  should  bear  in  truth. 

In  reference  to  this  criminality  of  the  infraction  of  the 
statute,  which  in  the  general  remarks  that  I  am  making 
you  will  see  furnishes  the  principal  basis  of  charge  that  I  am 
regarding,  we  may  see  from  the  statute  itself  what  the 
measure  of  criminality  there  given  is,  what  the  measure 
under  indictment  would  be  or  might  be,  and  then  you  will 
see  that  that  infraction,  if  it  occurred,  and  if  it  were  against 
the  law  and  punishable  by  the  law  under  the  ordinary  meth 
ods  and  procedures  of  our  common  courts  of  justice,  furnishes 
not  only  no  vindication  of,  but  no  support  to,  the  notion 
that  upon  it  can  be  ingrafted  the  accusation  of  impeachment 
the  accusation  of  criminality  that  is  impeachable,  any  more 
than  any  other  topic  of  comparatively  limited  and  trivial 
interest  and  concern.  The  provision  is  not  that  there  must 
be  a  necessary  penalty  of  gravity,  but  that  under  the  scale 
of  imprisonment  and  fine  the  only  limit  is  that  it  shall  not 
exceed  $10,000  of  pecuniary  liability  and  five  years  of  im 
prisonment.  Six  cents  fine,  one  day's  imprisonment,  ac 
cording  to  the  nature  of  the  offence,  within  the  discretion 
of  the  Court,  may  satisfy  the  public  justice  under  indictment 
in  regard  to  this  offence  which  is  claimed  as  the  footing  and 
front  of  the  President's  fault. 

Nor  was  this  open,  unrestricted  mercy  of  the  law  unat 
tended  to  in  debate.  The  honorable  senator  from  Massa- 


380         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

chusetts  [Mr.  Sumner]  in  the  course  of  the  discussion  of 
this  section  of  the  bill,  having  suggested  that  it  would  be 
well,  at  least,  to  have  a  moderate  minimum  of  punishment 
that  would  secure  something  like  substance  necessarily  in  the 
penal  infliction,  and  having  suggested  $1,000  or  $500  as 
the  lower  limit,  basing  upon  this  wise  intimation  that  some 
time  or  other  there  might  be  a  trial  under  this  section  before 
a  court  that  had  a  political  bias  and  the  judge  might  let  the 
man  off  without  any  substantial  punishment,  he  was  met 
by  the  honorable  senator  from  Vermont  [Mr.  Edmunds] 
and  the  honorable  senator  from  Oregon  [Mr.  Williams] 
who  seemed  to  have  the  conduct  of  the  bill,  at  least  in  re 
spect  to  these  particular  provisions,  in  the  way  to  which  I 
will  attract  your  attention.  Mr.  Sumner  said: 

Shall  we  not  in  this  case,  where  political  opinion  may  intrude 
on  the  bench,  make  a  provision  that  shall  at  least  secure  a  certain 
degree  of  punishment? 

Mr.  Edmunds  defended  the  unlimited  discretion  of  pun 
ishment. 

Mr.  Williams  said: 

I  concur  in  the  views  expressed  by  the  senator  from  Vermont, 
for  the  reason,  in  the  first  place,  that  this  is  a  new  offence  created 
by  statute,  and  it  does  not  define  a  crime  involving  moral  turpi 
tude,  but  rather  a  political  offence;  and  there  is  some  ground  to 
suppose  that  mistakes  may  be  made  under  this  law  by  persons  in 
office;  and  I  think  that  in  such  case  there  should  be  a  large  dis 
cretion  left  to  the  Court. 

So  much  for  indictment;  so  much  for  the  wise  reasons  of 
our  legislators;  and  then,  that  being  the  measure  and  the 
reason,  there  is  clamped  upon  this  a  necessary,  an  inevitable, 
an  inexorable  result  that  is  to  bring  these  vast  consequences 
to  the  state  and  to  the  respondent.  But  even  then  you  do 
not  know  or  understand  the  full  measure  of  discretion, 
unless  you  attend  to  the  fact  that  such  formal,  technical 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  381 

crimes  when  made  the  subject  of  conviction  and  of  sentence 
in  obedience  to  the  law  are,  under  a  principle  of  our  Consti 
tution  and  of  every  other  just,  I  will  not  say  merciful, 
government  in  the  world,  made  subjects  of  pardon;  but 
under  this  process  of  impeachment,  with  but  one  punish 
ment,  and  that  the  highest  in  the  public  fame  and  character 
of  men  that  is  known  or  that  can  be  conceived,  we  have 
this  further,  this  terrible  additional  quality,  that  the  punish 
ment  is  immitigable,  immutable,  irreversible,  unpardonable, 
and  no  power  whatever  can  lighten  or  relieve  the  load  with 
which  an  impeached  and  convicted  public  servant  goes 
forth  from  your  chambers  in  a  just  exercise  of  this  power  of 
impeachment  with  a  punishment  heavier  than  he  can  bear. 

And  now,  what  answer  is  there  to  this  but  an  answer  that 
will  take  a  load  of  punishment  and  of  infamy  from  him  and 
place  it  somewhere  else?  True  it  is  that  if  he  be  unjustly 
convicted,  if  he  be  convicted  for  technical  and  formal  faults, 
then  the  judgment  of  the  great  nation,  of  intelligent  and  in 
dependent  men,  stamps  upon  his  judges  the  consequences 
that  they  have  failed  to  inflict  upon  the  victim  of  their  power. 
Then  it  is  that  the  maxim  si  innocens  damnatur,  judex  bis 
damnatur,  finds  its  realization  in  the  terrors  of  public  opinion 
and  the  recorded  truths  of  history. 

I  have  introduced  these  considerations  simply  to  show 
you  that  these  notions,  that,  if  you  can  prove  that  a  man  has 
stumbled  over  the  statute,  it  is  essential  that  he  should  bear 
these  penalties  and  these  consequences,  find  no  support  in 
reason,  none  in  law,  none  in  the  Constitution,  none  in  the 
good  sense  of  this  high  tribunal,  none  in  the  habits  and  views 
of  the  great  people  whom  we  represent.  Indeed,  we  should 
come  under  the  condemnation  of  the  speaker  in  Terrence 
if  we  were  to  seek  upon  this  narrow,  necessary  view,  as  it  is 
urged,  of  law,  such  consequences  as  I  have  stated :  Summum 
jus  soepe  summa  est  malitia,  an  extremity  of  the  law  is  often 
the  extremity  of  wickedness. 


382         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

And  now  I  am  prepared  to  consider  the  general  traits  and 
qualities  of  this  offence  charged;  and  I  shall  endeavor  to 
pursue  in  the  course  of  my  argument  a  consideration,  per 
haps  not  always  formal  nor  always  exactly  defined,  of  three 
propositions : 

1.  That  the  alleged  infractions  of  these  penal  statutes  are 
not  in  themselves,  nor  in  any  quality  or  color  that  has  been 
fastened  upon  them  by  the  evidence  in  this  cause,  impeach 
able  offences. 

2.  Having  an  application  to  the  same  conclusion,  that 
whatever  else  there  is  attendant,  appurtenant,  or  in  the 
neighborhood  of  the  subjects  thus  presented  to  your  consid 
eration,  they  are  wholly  political,  and  not  the  subject  of 
jurisdiction  in  this  court  or  in  any  court,  but  only  in  the 
great  forum  of  the  popular  judgment,  to  be  debated  there  at 
the  hustings  and  in  the  newspapers,  by  the  orators  and  the 
writers,  to  whom  we  are  always  so  much  indebted  for  cor 
rect  and  accurate  views  on  subjects  presented   for  such 
determination.     If  I  shall  have  accomplished  this  I  shall 
have  accomplished  everything.     I  shall  have  drawn  atten 
tion  to  the  true  dimensions  in  a  constitutional  view  of  the 
crime  alleged  even  if  it  has  been  committed,  and  shall  have 
shown  by  a  reflex  application  of  the  argument  that  it  is 
mere  error  and  confusion,  perhaps  pardonable  in  an  impeach 
ing  authority,  but  unpardonable  in  a  court  of  judgment, 
to  confound  things  political  with  things  criminal. 

And  then,  third,  I  shall  ask  your  attention  to  the  precise 
traits  and  facts  as  disclosed  in  the  evidence  charged  in  the 
articles,  and  bring  you,  I  think,  to  a  safe,  an  indisputable, 
firm,  and  thorough  conclusion  that  even  the  alleged  infrac 
tions  of  penal  law  have  none  of  them,  in  fact,  taken  place. 

Now,  let  us  look  at  this  criminality  in  the  point  upon 
which,  in  the  largest  view  of  any  evidence  in  support  of  it 
given  on  the  part  of  the  managers,  it  must  turn.  We  must 
separate,  at  least  for  the  purpose  of  argument,  the  inuendoes, 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  383 

the  imputations,  the  aggravations  that  find  their  place  only 
in  the  oratory  of  the  managers,  or  only  in  your  own  minds 
as  conversant  with  the  political  situation  and  enlisted 
zealously  in  the  rightful  controversies  which  belong  to  it  as  a 
political  situation,  and  we  are  then  to  treat  the  subject  in 
this  method:  that  up  to  twelve  o'clock  on  February  the 
21st,  1868,  the  President  was  innocent  and  unimpeachable, 
and  at  one  o'clock  on  the  same  day  he  was  guilty  and  im- 
peachable  of  the  string  of  offences  that  fill  up  all  the  articles, 
except  that  devoted  to  the  speeches,  the  tenth;  for  whatever 
he  did  was  done  then  at  that  point  of  time,  leaving  out  the 
Emory  article,  which  relates  to  a  conversation  on  the  morn 
ing  of  the  22d,  and  which  I  also  should  have  excepted  from 
these  observations.  What  he  did  was  all  in  writing.  What 
he  did  was  all  public  and  official.  What  he  did  was  commu 
nicated  to  all  the  authorities  of  the  Government  having  rela 
tion  to  the  subject.  Therefore  you  have  at  once  proposed 
for  your  consideration  a  fault,  not  of  personal  delinquency, 
not  of  immorality  or  turpitude,  not  one  that  disparages  in 
the  judgment  of  mankind,  not  one  that  degrades  or  affects 
the  position  of  the  malefactor;  it  is,  as  Mr.  Senator  Williams 
truly  said,  a  "new  offence,"  also,  an  offence  "not  involving 
turpitude,  and  rather  of  a  political  character." 

Now,  too,  upon  these  proofs  the  offence  carries  no  conse 
quences  beyond  what  its  action  indicates,  to  wit:  a  change 
in  the  head  of  a  department.  It  is  not  a  change  of  the  depart 
ment.  It  is  not  an  attempt  to  wrest  a  department  or  apply 
an  office  against  the  law,  contrary  to  the  regulations  of  the 
Government,  and  turn  its  power  against  the  safety  or  peace 
of  the  state;  not  in  the  least.  Whatever  imaginations  may 
suggest,  whatever  invective  and  opprobrium  may  intimate, 
the  fact  is  that  it  had  no  other  object,  had  no  other  plan, 
would  have  had  no  other  consequences — I  mean  within  the 
limits  of  this  indictment  and  of  this  proof — than  to  substi 
tute  for  Mr.  Stanton  some  other  citizen  of  the  United  States 


384         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

that,  by  and  with  the  advice  and  consent  of  the  Senate, 
should  be  approved  for  that  high  place,  or  to  fill  it,  until 
that  advice  and  consent  should  be  given,  by  some  legal  ad 
interim  holder  of  the  office,  not  filling  it,  but  discharging  its 
duties. 

If,  then,  the  removal  had  been  effected,  if  the  effort  to 
assert  a  constitutional  authority  by  the  President  had  been 
effectual,  no  pretence  is  made,  or  can  be  made,  that  anything 
would  have  been  accomplished  that  could  be  considered  as  a 
turning  of  the  Government  or  any  branch  of  its  service  out 
of  the  authority  of  law.  Neither  did  it  in  purpose  or  con 
sequences  involve  any  change  in  the  policy  of  the  Executive 
of  the  United  States  in  the  War  Department  or  in  its  man 
agement.  Whatever  there  might  have  been  of  favor  or  sup 
port  in  public  opinion,  in  political  opinion,  in  the  wishes  and 
feelings  of  the  Congresses  of  the  United  States  in  favor  of 
Mr.  Stanton  for  that  post,  and  however  well  deserved  all 
that  might  be,  Senators  cannot  refuse  to  understand  that 
that  does  not  furnish  a  reason  why  the  offence  committed 
by  a  change  of  the  head  of  a  department  should  be  exag 
gerated  into  a  crime  against  the  safety  of  the  State. 

But  I  think  we  may  go  further  than  that,  and  say  that 
however  great  may  have  been  the  credit  with  the  houses  of 
Congress  and  with  the  people,  or  with  the  men  of  his  own 
party,  which  the  Secretary  of  War,  Mr.  Stanton,  enjoyed,  it 
cannot  be  denied  that  there  was  a  general  and  substantial 
concurrence  of  feeling  in  this  body,  among  all  the  public 
men  in  the  service  of  the  Government,  and  among  the  citizens 
in  general,  that  the  situation  disclosed  to  public  view  and 
public  criticism,  of  an  antagonism  between  the  head  of  a 
department  and  the  President  of  the  United  States,  was 
not  suitable  to  the  public  service,  and  was  not  to  be  encour 
aged  as  a  situation  in  the  conduct  of  the  Executive  Govern 
ment,  and  that  there  was  a  general  opinion  among  thought 
ful  and  considerate  people  that,  however  much  the  politics 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  385 

of  the  Secretary  of  War  might  be  regarded  as  better  than 
the  politics  of  the  President,  if  we  would  uphold  the  frame 
of  Government  and  recognize  the  official  rights  that  belong 
to  the  two  positions,  it  was  a  fair  and  just  thing  for  the 
President  to  expect  that  the  retirement  should  take  place 
on  the  part  of  the  Secretary,  rather  than  that  he,  the  Presi 
dent,  should  be  driven  to  a  forced  resignation  himself,  or 
to  the  necessity  of  being  maimed  and  crippled  in  the  conduct 
of  the  public  service. 

It  follows  necessarily,  then,  that  the  whole  criminality,  in 
act,  in  purpose,  and  in  consequence,  that  in  this  general 
survey  we  can  attach  to  the  imputed  offence,  is  a  formal  con 
travention  of  a  statute.  I  will  not  say  how  criminal  that 
may  be.  I  will  not  say  whether  absolute,  undeviating, 
inflexible,  perfect  obedience  to  every  law  of  the  land  may 
not  be  exacted  under  the  penalty  of  death  from  everybody 
holding  public  station.  That  is  matter  of  judgment  for 
legislators;  but  nevertheless  the  morality,  the  policy,  the 
quality  of  the  transaction  cannot  be  otherwise  affected  than 
so  far  as  the  actual  punishments  of  the  statute  are  made 
applicable.  When  you  consider  that  this  new  law,  thus 
passed,  really  "reverses  the  whole  action  of  this  govern 
ment,"  in  the  language  of  senators  and  representatives  who 
spoke  in  its  behalf  during  its  passage;  that,  in  the  language 
of  the  same  debaters,  it  "revolutionizes  the  practice  of  the 
government;"  and  when  you  consider  that  the  only  person 
in  the  United  States  that  this  law,  in  respect  to  the  removal 
from  office,  was  intended  to,  or  by  its  terms  could,  affect,  was 
the  President  of  the  United  States;  that  nobody  else  was 
subject  to  the  law;  that  it  was  made  a  rule,  a  control,  a 
restraint,  a  mandate,  a  direction  to  nobody  else  in  the 
United  States  except  the  President,  just  as  distinctly  as  if  it 
had  said  in  its  terms,  "If  the  President  of  the  United  States 
shall  remove  from  office  he  shall  be  punished  by  fine  and 
imprisonment;"  and  when  you  know  that,  by  at  least  de- 

27 


386         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

bated  and  disputed  contests,  it  was  claimed  that  the  Presi 
dent  of  the  United  States  had  the  right  to  remove,  and  that 
an  inhibition  upon  that  right  was  a  direct  assertion  of 
congressional  authority  aimed  at  the  President  in  his  public 
trust,  duty,  and  authority  of  carrying  on  the  Executive 
Government,  you  can  then  at  once  see  that  by  a  necessary 
exclusion  and  conclusion,  however  much  the  act  may  have 
been  against  the  law  in  fact,  as  on  subsequent  judgment  may 
be  held  by  this  or  any  other  court,  yet  it  was  an  act  of  that 
nature,  forbidden  under  those  circumstances,  and  to  be  at 
tempted  under  those  obligations  of  duty,  if  attempted  at 
all,  which  gave  it  this  quality,  and  you  see  at  once  that  no 
rhetoric,  that  no  argument,  that  no  politics  whatever  can 
fix  upon  the. offence,  completed  or  attempted,  any  other 
quality  than  this :  a  violation  of  a  law,  if  it  shall  be  so  held, 
in  support  of  and  in  obedience  to  the  higher  obligation  of  the 
Constitution.  Whenever  anybody  puts  himself  in  that  posi 
tion,  nobody  can  make  a  crime  of  it  in  the  moral  judgment, 
in  the  judicial  determination.  In  sentence  and  measure 
of  punishment,  at  least,  if  not  in  formal  decision  and  judg 
ment,  no  man  can  make  a  crime  of  it. 

We  are  treated  to  the  most  extraordinary  view  on  the 
subject  of  violating  what  is  called  an  unconstitutional  law. 
Why,  nobody  ever  violates  an  unconstitutional  law,  because 
there  never  is  any  such  obstacle  to  a  man's  action,  freedom, 
duty,  right,  as  an  unconstitutional  law.  The  question  is 
whether  he  violates  law,  not  whether  he  violates  a  written 
paper  published  in  a  statute-book,  but  whether  he  violates 
law;  and  the  first  lessons  under  a  written  Constitution  are 
and  must  be  that  a  law  unconstitutional  is  no  law  at  all. 
The  learned  manager,  Mr.  Boutwell,  speaks  of  a  law  being, 
possibly,  he  says,  capable  of  being  annulled  by  the  judgment 
of  the  Supreme  Court.  Why,  the  Supreme  Court  never 
annuls  a  law.  There  is  not  any  difference  in  the  binding 
force  of  the  law  after  the  Supreme  Court  has  annulled  it,  as 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  387 

he  calls  it,  from  what  there  was  before.  The  Supreme 
Court  has  no  political  function;  it  has  no  authority  of  will 
or  power  to  annul  a  law.  It  has  the  faculty  of  judgment, 
to  discern  what  the  law  is,  and  what  it  always  has  been, 
and  so  to  declare  it. 

Apply  it  to  an  indictment  under  this  very  statute,  and 
supposing  the  law  is  unconstitutional,  for  the  purpose  of 
argument,  what  is  the  result?  Is  the  man  to  be  punished 
because  he  has  violated  the  law,  and  the  Supreme  Court  has 
not  as  yet  declared  it  unconstitutional?  No;  he  comes  into 
court  and  says,  "I  have  violated  no  law."  The  statute  is 
read;  the  Constitution  is  read;  and  the  judge  says,  "You 
have  violated  no  law."  That  is  the  end  of  the  matter;  and  he 
does  not  want  to  appeal  to  the  discretion  of  the  Court  in  the 
measure  of  punishment,  or  to  the  mercy  of  the  Executive  in 
the  matter  of  pardon.  He  has  done  what  was  right,  and 
he  needs  to  make  no  apology  to  Congress  or  anybody  else, 
and  Congress,  in  so  far  as  it  has  not  protected  the  public 
servant,  rather  owes  an  apology  to  him.  I  shall  consider 
this  matter  more  fully  hereafter;  and  now  look  at  it  only  in 
the  view  of  fixing  such  reduced,  and  necessarily  reduced, 
estimate  of  the  criminality  imputed,  as  makes  it  impossible 
that  this  should  be  an  impeachable  offence. 

Much  has  been  said  about  the  duty  of  the  people  to  obey 
and  of  officers  to  execute  unconstitutional  laws.  I  claim 
for  the  President  no  greater  right,  in  respect  to  a  law  that 
operates  upon  him  in  his  public  duty,  and  upon  him  exclu 
sively,  to  raise  a  question  under  the  Constitution,  to  deter 
mine  what  his  right  and  what  his  duty  is,  than  I  claim-  for 
every  citizen  in  his  private  capacity  when  a  law  infringes 
upon  his  constitutional  and  civil  and  personal  rights;  for  to 
say  that  Congress  has  no  right  to  pass  unconstitutional 
laws  and  yet  that  everybody  is  to  obey  them,  just  as  if  they 
were  constitutional,  and  to  be  punished  for  breaking  them, 
just  as  if  they  were  constitutional,  and  to  be  prevented  from 


388         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

raising  the  question  whether  they  are  constitutional,  by 
penal  inflictions  that  are  to  fall  upon  them,  whether  they 
succeed  in  proving  them  unconstitutional  or  not,  is,  of 
course,  trampling  the  Constitution,  and  its  defence  of  those 
who  obey  it,  in  the  dust.  Who  will  obey  the  Constitution,  as 
against  an  act  of  Congress  that  invades  it,  if  the  act  of  Con 
gress  with  the  sword  of  its  justice  can  cut  off  his  head  and 
the  Constitution  has  no  power  to  save  him,  and  nothing 
but  debate  hereafter  as  to  whether  he  was  properly  punished 
or  not?  The  gentlemen  neglect  the  first,  the  necessary 
conditions  of  all  constitutional  government,  when  they 
press  upon  us  arguments  of  this  nature. 

But  again,  the  form  alleged  of  infraction  of  this  law, 
whether  it  was  constitutional  or  unconstitutional,  is  not 
such  as  to  bring  any  person  within  any  imputation,  I  will 
not  say  of  formal  infraction  of  the  law,  but  of  any  violent, 
wilful  use  and  extent  of  resistance  to,  or  contempt  of,  the  law. 
Nothing  was  done  whatever  but  to  issue  a  paper  and  have 
it  delivered,  which  puts  the  posture  of  the  thing  in  this 
condition  and  nothing  else:  the  Constitution,  we  will  sup 
pose,  says  that  the  President  has  a  right  to  remove  the  Sec 
retary  of  War;  the  act  of  Congress  says  the  President  shall 
not  remove  the  Secretary  of  War;  the  President  says,  "  I  will 
issue  an  official  order  which  will  raise  the  same  question  be 
tween  my  conduct  and  the  statute  that  the  statute  raises  be 
tween  itself  and  the  Constitution."  As  there  is  not,  and  can 
not  be,  and  never  should  be,  a  reference  of  a  law  abstractly  to 
the  revision  and  determination  of  the  Supreme  Court,  or  of  any 
other  court,  which  would  be  making  it  a  council  of  revision  and 
of  superior  and  paramount  political  and  legislative  author 
ity,  so  when  the  Constitution  and  a  law  are,  or  are  supposed 
to  be,  at  variance  and  inconsistent,  everybody  upon  whose 
right  this  inconsistency  intrudes  has  a  right,  under  the  usual 
ethical  conditions  of  conduct  of  good  citizenship,  to  put  him 
self  in  a  position  to  act  under  the  Constitution  and  not  under 


IMPEACHMENT  OP  PRESIDENT  JOHNSON  389 

the  law.  And  thus  the  President  of  the  United  States,  as 
it  is  all  on  paper  thus  far — the  Constitution  is  on  paper, 
the  law  is  on  paper — issues  an  order  on  paper,  which  is  but  an 
assertion  of  the  Constitution  and  a  denial  of  the  law,  and 
that  paper  has  legal  validity  if  the  Constitution  sustains  it, 
and  is  legally  invalid  and  ineffectual,  a  mere  imbelle  telum,  if 
the  law  prohibits  it  and  the  law  is  conformed  to  the  Constitu 
tion.  Therefore  it  appears  that  nothing  was  done  but  the 
mere  course  and  process  of  the  exercise  of  right  claimed 
under  the  Constitution  without  force,  without  violence, 
and  making  nothing  but  the  attitude,  the  assertion  which, 
if  questioned,  might  raise  the  point  for  judicial  determina 
tion. 

Now,  Senators,  you  are  not,  you  cannot  be,  unfamiliar 
with  the  principle  of  our  criminal  law,  the  good  sense,  the 
common  justice  of  which,  although  it  sometimes  is  pushed  to 
extremes,  approves  itself  to  every  honest  mind,  that  criminal 
punishments,  under  any  form  of  statute  definitions  of  crime, 
shall  never  be  made  to  operate  upon  acts,  even  of  force  and 
violence,  that  are,  or  honestly  may  be  believed  to  be,  done 
under  a  claim  of  right.  It  is  for  this  purpose  that  the 
animus,  the  intent,  the  animus  furandi  in  case  of  larceny, 
the  malice  prepense  in  a  case  of  murder,  the  intent  neces 
sary  in  every  crime,  is  made  the  very  substance  of  the  crime, 
and  nothing  is  felt  to  be  more  oppressive,  and  nothing  has 
fewer  precedents  in  the  history  of  our  legislation  or  of  our 
judicial  decisions,  than  any  attempt  to  coerce  the  assertion 
of  peaceable  and  civil  claims  of  right  by  penal  enactments. 
It  is  for  that  reason  that  our  communities  and  our  law-givers 
have  always  frowned  upon  any  attempt  to  coerce  the  right 
of  appeal  under  any  restrictions  or  any  penalties  of  costs  of 
a  character  oppressive.  Civil  rights  are  rights  valuable 
and  practical,  just  according  as  people  can  avail  themselves 
of  them,  they  keeping  the  peace;  and  the  moment  you  put 
the  coercion  of  punishment  upon  the  assertion  of  a  right,  a 


390         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

claimed  right,  in  a  manner  not  violating  the  peace  and  not 
touching  the  public  safety,  you  infringe  one  of  the  necessary 
liberties  of  every  citizen. 

Although  I  confess  that  I  feel  great  reluctance,  and  it  is 
contrary  to  my  own  taste  and  judgment  very  much  to  mingle 
what  is  but  a  low  level  of  illustration  and  argument  with  so 
grave  and  general  a  subject  as  determining  the  dimensions 
and  qualities  of  an  impeachable  offence,  yet,  on  the  other 
hand,  day  after  day  it  is  pressed  upon  you  that  a  formal 
violation  of  a  statute,  although  made  under  the  claim  of  a 
constitutional  right  and  duty,  honestly  felt  and  possessed 
by  the  President,  is  nevertheless  a  ground  of  impeachment, 
not  to  be  impeded  or  prevented  by  any  of  these  considera 
tions;  and  hence  I  am  induced  to  ask  your  attention  to  what 
is  but  an  illustration  of  the  general  principle,  that  penal 
laws  shall  not  be  enforced  in  regard  to  an  intent  which  is 
governed  by  a  claim  of  right.  And  this  singular  case  oc 
curred:  a  poacher  who  had  set  his  wires  within  the  domain 
of  a  lord  of  the  manor  had  caught  a  pheasant  in  his  wires; 
the  gamekeeper  took  possession  of  the  wires  and  of  the  dead 
pheasant,  and  then  the  poacher  approaches  him  by  threats 
of  violence,  which  would  amount  to  robbery,  not  larceny, 
takes  from  him  the  wires  and  the  dead  pheasant,  and  the 
poacher  situated  in  that  way  on  another's  dominions,  and 
thus  putting  himself  in  a  condition  where  the  humanity  of 
the  law  can  hardly  reach  and  protect  him,  is  brought  into 
question  and  tried  for  robbery;  and  Vaughan,  Baron,  says: 

If  the  prisoner  demanded  the  wires  under  the  honest  impression 
that  he  had  a  right  to  them,  though  he  might  be  liable  to  a  trespass 
in  setting  them  it  would  not  be  a  robbery.  The  gamekeeper  had 
a  right  to  take  them,  and  when  so  taken  they  never  could  have  been 
recovered  from  him  by  the  prisoner;  yet,  still,  if  the  prisoner  acted 
under  the  honest  belief  that  the  property  in  them  continued  in 
himself,  I  think  it  is  not  a  robbery.  If,  however,  he  used  it  merely 
as  a  pretense,  it  would  be  robbery.  The  question  for  the  jury  is, 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  391 

whether  the  prisoner  did  honestly  believe  he  had  a  property  in 
the  snares  and  pheasant  or  not.     (1  Russell  on  Crimes,  872.) 

Thus  does  the  criminal  law  of  a  free  people  distinguish 
between  technical  and  actual  fault;  and  what  mean  the  guar 
antees  of  the  Constitution,  and  what  mean  the  principles 
and  the  habits  of  English  liberty,  that  will  not  allow  any 
body  enjoying  those  liberties  to  be  drawn  into  question 
criminally  upon  any  technical  or  formal  view  of  the  law  to 
be  administered  by  hide-bound  authority  or  judges  estab 
lished  and  devoted  to  the  prosecution  of  crime;  what  mean 
those  fundamental  provisions  of  our  liberty,  that  no  man 
shall  be  put  on  trial  on  an  accusation  of  crime,  though  for 
mally  committed,  unless  the  grand  jury  shall  choose  to  bring 
him  under  inculpation,  and  that  when  thus  brought  under 
inculpation,  he  shall  not  be  condemned  by  any  judge  or 
magistrate,  but  the  warm  and  living  condemnation  of  his 
peers  shall  be  added  to  the  judicial  determination,  or  he 
shall  go  free?  Surely  we  have  not  forgotten  our  rights  and 
our  liberties,  and  upon  what  they  rest,  that  we  should  bring 
a  President  of  the  United  States  under  a  formal  apparatus 
of  iron  operation,  that  by  necessity,  if  you  set  it  agoing,  shall, 
without  crime,  without  fault,  without  turpitude,  without 
moral  fault  even  of  violating  a  statute  that  he  believed  to 
be  a  statute  binding  upon  him,  bring  about  this  monstrous 
conclusion — I  do  not  mean  in  any  condemnation  of  it,  but 
monstrous  in  its  dimensions — of  depriving  him  of  his  office 
and  the  people  of  the  country  of  an  executive  head. 

RECESS    OF    THE    COURT 

I  am  quite  amazed,  Mr.  Chief  Justice  and  Senators,  at 
the  manner  in  which  these  learned  managers  are  disposed 
to  bear  down  upon  people  that  obey  the  Constitution  to 
the  neglect  or  avoidance  of  a  law.  It  is  the  commonest 
duty  of  the  profession  to  advise,  it  is  the  commonest  duty 
of  the  profession  to  maintain  and  defend,  the  violation 


392         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

of  a  law  in  obedience  to  the  Constitution;  and  in  the 
case  of  an  officer  whose  duty  is  ministerial,  whose  whole 
obligation  in  his  official  capacity  is  to  execute  or  to  give 
free  course  to  a  law,  even  when  the  law  does  not  bear  at  all 
upon  him  or  his  rights,  the  officer  may  appeal  to  the  Courts 
if  he  acts  in  good  faith  and  for  the  purpose  of  the  public 
service,  and  with  a  view  of  ascertaining  by  the  ultimate 
tribunal  in  season  to  prevent  public  mischiefs,  whether  the 
Constitution  or  the  law  is  to  be  the  rule  of  his  conduct,  and 
whether  they  be  at  variance. 

Let  me  ask  your  attention  to  a  case  in  Selden's  Reports 
in  the  New  York  Court  of  Appeals  (3  Selden  page  9),  the 
case  of  Newell,  the  auditor  of  the  canal  department,  in  error, 
against  the  people.  The  Constitution  of  the  State  of  New 
York  contains  provisions  restrictive  upon  the  capacity  or 
power  of  the  legislature  to  incur  public  debt.  The  legis 
lature,  deeming  it,  however,  within  its  right  to  raise  money 
for  the  completion  of  the  canals  upon  a  pledge  of  the  canals 
and  their  revenues,  not  including  what  may  be  called  the 
personal  obligation  of  the  State,  a  dry  mortgage  as  it  were, 
not  involving  debt,  but  only  carrying  the  pledge,  undertook 
to,  and  did,  raise  a  loan  of  $6,000,000.  Mr.  Newell,  the 
canal  auditor,  when  a  draft  was  drawn  upon  him  in  his  offi 
cial  capacity,  which  it  became  him  as  a  ministerial  officer, 
obedient  to  the  law,  to  honor  and  proceed  upon,  refused  it 
honor,  and  raised  the  question  whether  this  act  was  consti 
tutional.  Well,  now,  he  ought  to  have  been  impeached! 
He  ought  to  have  had  the  senate  and  the  court  of  appeals  of 
New  York  convened  on  him  and  been  removed  from  office! 
The  idea  of  a  canal  auditor  setting  himself  up  against  what 
the  learned  manager  calls  law!  He  set  himself  up  in  favor 
of  law  and  against  its  contravention,  and  the  question  was 
carried  through  the  Supreme  Court  of  that  State,  and  that 
Court  decided  that  the  law  was  constitutional,  but  upon 
an  appeal  to  the  court  of  appeals  that  court  held  it  unconsti- 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  393 

tutional,  and  the  $6,000,000  loan  was  rolled  away  as  a  scroll, 
needing  to  be  fortified  by  an  indemnifying  proceeding  amend 
ing  the  constitution  and  extending  its  provisions. 

Now,  I  should  like  to  know  if  the  President  of  the  United 
States,  who  has  taken  an  oath  to  preserve,  protect,  and 
defend  the  Constitution  in  reference  to  a  law  that  is  made 
over  his  head  and  on  his  right,  and  over  and  on  nothing  else 
in  this  nation,  cannot  appeal  to  the  Constitution?  And 
when  he  does  make  the  appeal  is  the  Constitution  to  answer 
him,  through  the  House  of  Representatives,  "  We  admit,  for 
argument,  that  the  law  is  unconstitutional;  we  admit  it 
operates  on  you  and  your  trust-right,  and  nothing  else;  we 
admit  that  you  were  going  to  raise  the  constitutional  ques 
tion,  and  yet  the  process  of  impeachment  is  the  peril  under 
which  you  do  that,  and  its  axe  is  to  cut  off  your  head  for 
questioning  an  unconstitutional  law  that  operates  upon  your 
right  and  contravenes  that  Constitution  which  you  have 
sworn  to  protect  and  defend  in  every  department  of  the 
government,  on  and  for  the  legislature,  on  and  for  the  judi 
ciary,  on  and  for  the  people,  on  and  for  the  executive  power"? 
How  will  our  learned  managers  dispose  of  this  case  of  Newell, 
the  auditor,  against  the  people  of  the  State  of  New  York — a 
worthy,  an  upright,  a  useful,  a  prosperous  assertion  in  the 
common  interest  and  for  the  maintenance  of  the  constitu 
tion,  of  a  duty  to  the  people? 

And  are  we  such  bad  citizens  when  we  advise  that  the  Con 
stitution  of  the  United  States  may  be  upheld,  and  that  any 
body,  without  a  breach  of  the  peace  and  in  an  honest  purpose, 
may  make  a  case  that  the  instance  may  be  given  whereby 
the  judgment  of  the  Court  may  be  had  and  the  Constitution 
saved  from  violation?  Not  long  since  the  State  of  New 
York  passed  a  law  levying  a  tax  on  brokerage  sales  in  the 
city  of  New  York  of  a  half  or  three-fourths  per  cent,  on  all 
goods  that  should  be  sold  by  brokers,  seeking  to  raise  for 
the  revenue  purposes  of  the  State  of  New  York  about  ten 


394         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

million  dollars  on  the  brokers'  sales  of  merchandise,  which 
sales  distribute  through  the  operations  of  that  emporium 
the  commerce  of  the  whole  country  for  consumption  through 
all  the  States  in  the  Union.  Your  sugar,  your  tea,  your 
coffee  that  you  consume  in  the  valley  of  the  Mississippi  was 
to  be  made  to  pay  a  tax  in  the  city  of  New  York  to  support 
the  State  of  New  York  in  its  government  by  that  tax;  and 
they  made  it  penal  for  any  broker  to  sell  without  giving  a 
bond  and  paying  the  tax.  Was  it  very  wicked  for  me,  when 
all  the  brokers  were  in  this  distress,  to  advise  them  that  the 
shortest  way  to  settle  that  matter  was  not  to  give  the  bond? 
And  when  one  of  them,  one  of  the  most  respectable  citizens 
of  the  city,  was  indicted  by  the  grand  jury  for  selling  coffee 
without  giving  a  bond,  and  it  came  before  the  Courts,  in 
stead  of  having,  as  I  supposed  when  I  gave  my  advice,  to 
come  up  to  the  Supreme  Court  of  the  United  States  to  vindi 
cate  the  Constitution  of  the  United  States,  I  had  the  good 
fortune  to  succeed  in  the  Court  of  Appeals  of  the  State  of 
New  York  itself,  that  court  holding  that  the  law  was  uncon 
stitutional,  and  the  indictment  failed.  Was  I  a  bad  citizen 
for  saving  the  Constitution  of  the  United  States  against 
these  infractions  of  law?  Was  the  defendant  in  the  indict 
ments  a  bad  citizen  for  undertaking  to  obey  the  Constitu 
tion  of  the  United  States?  Where  are  your  constitutional 
decisions — McCulloch  vs.  Maryland;  Brown  vs.  Maryland; 
the  bank-tax  cases — all  these  instances  by  which  a  constitu 
tion  is  arrayed  for  the  protection  of  the  rights  which  it 
secures?  It  is  always  by  instances,  it  is  always  by  acts;  and 
the  only  ethical  condition  is  that  it  shall  be  done  without  a 
breach  of  the  peace  and  in  good  faith. 

How  is  it  with  people  in  office  that  violate,  sometimes,  the 
law?  Is  it  true  that  they  must  necessarily  be  punished  for 
it?  Mr.  Lincoln,  before  the  "invasion"  or  "insurrection" 
broke  out,  had  raised  the  case  of  the  Constitution  for  the 
suspension  of  the  habeas  corpus,  undertook  to  arrest  a  mis- 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  395 

chief  that  was  going  on  at  Key  West,  where,  through  the 
forms  of  peace,  an  attack  was  made  upon  the  Government 
fort  there  through  the  habeas  corpus.  An  excellent  way  to 
take  a  fort !  I  do  not  know  whether  the  honorable  manager 
[Mr.  Butler],  who  is  so  good  a  lawyer,  tried  that  in  all  his 
military  experience  or  not,  but  the  habeas  corpus  was 
resorted  to  down  in  Florida  to  empty  that  fort  of  all  its 
soldiers,  and  was  succeeding  admirably.  A  judge  issued  the 
habeas  corpus;  the  soldier  was  brought  out,  and  then  he 
was  free;  and  so  the  fort  would  have  been  taken  by  habeas 
corpus.  President  Lincoln  suspended  the  habeas  corpus, 
violating  the  law,  violating  the  Constitution.  Should  he 
have  been  impeached?  Is  it  necessary  that  a  man  should 
be  impeached?  What  did  he  do?  He  suspended  it  by 
proclamation  of  the  10th  of  May,  1861,  to  be  found  in  volume 
twelve  Statutes  at  Large,  page  1260;  and  at  the  opening  of 
the  next  session  he  referred  to  the  fact  that  the  legality  of 
the  measures  was  questioned,  and  said  they  were  ventured 
upon  under  a  public  necessity,  and  submitted  to  the  judg 
ment  of  Congress  whether  there  should  be  legislation  or  not. 
That  is  found  on  pages  12  and  13  of  the  Senate  Journal, 
first  session  thirty-seventh  Congress,  1861. 

There  were  various  other  acts  of  this  great,  heroic,  good 
President — the  arrest  of  the  members  of  the  legislature  of 
Maryland,  never  justified  by  any  law  or  any  constitution 
that  I  know  of,  but  wholly  justified  by  duty  to  the  country. 
And  it  so  happens,  what  every  statesman  knows  as  the 
experience  of  government,  that  public  action  is  to  be  judged 
by  public  men  and  public  officers  as  private  actions  are  to 
be  judged  by  private  men,  according  to  the  quality  of  the  act, 
whether  it  shall  be  impeached  or  whether  it  shall  be  indem 
nified. 

I  do  not  seek  this  argument  as  going  further  than  to  meet 
the  necessity  which  I  understand  these  learned  managers 
put  forth  that  an  infraction  of  a  statute  must  carry  out  of 


396         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

office  any  President  of  the  United  States  who  is  so  guilty. 
Why,  the  very  next  statute  in  the  book  before  me,  after 
the  civil-offiee-tenure  act,  on  page  232  of  the  volume,  is  an 
act  to  declare  valid  and  conclusive  certain  proclamations 
of  the  President  and  acts  done  in  pursuance  thereof,  or  of 
his  orders,  for  the  suppression  of  the  late  rebellion  against 
the  United  States.  The  military  commissions  had  been 
declared  invalid  by  the  Supreme  Court,  and  we  have  an  act 
of  indemnity  covering  a  multitude  of  formal,  technical  sins 
by  indemnity  and  protection  to  have  the  same  effect  as  if 
the  law  had  been  passed  before  they  were  performed.  So, 
therefore,  this  dry,  dead  interpretation  of  law  and  duty  by 
which  act,  unqualified,  unscrutinized,  unweighed,  unmeas 
ured,  is  to  form  the  basis  of  necessary  action  of  the  guillotine 
of  impeachment,  disappears  wholly  under  the  clear,  bright, 
and  honest  light  which  true  statesmanship  sheds  upon  the 
subject. 

I  may  as  conveniently  at  this  point  of  the  argument  as  at 
any  other  pay  some  attention  to  the  astronomical  punish 
ment  which  the  learned  and  honorable  manager,  Mr. 
Boutwell,  thinks  should  be  applied  to  this  novel  case  of 
impeachment  of  the  President.* 

*  At  the  close  of  Mr.  Boutwell's  argument  is  the  following  extravagantly  rhetori 
cal  passage: 

Travellers  and  astronomers  inform  us  that  in  the  southern  heavens,  near  the 
southern  cross,  there  is  a  vast  space  which  the  uneducated  call  the  hole  in  the  sky, 
where  the  eye  of  man,  with  the  aid  of  the  powers  of  the  telescope,  has  been  unable 
to  discover  nebulce,  or  asteroid,  or  comet,  or  planet,  or  star,  or  sun.  In  that 
dreary,  cold,  dark  region  of  space,  which  is  only  known  to  be  less  than  infinite  by 
the  evidences  of  creation  elsewhere  the  Great  Author  of  celestial  mechanism  has 
left  the  chaos  which  was  in  the  beginning.  If  this  earth  were  capable  of  the  senti 
ments  and  emotions  of  justice  and  virtue,  which  in  human  mortal  beings  are  the 
evidences  and  the  pledge  of  our  Divine  origin  and  immortal  destiny,  it  would  heave 
and  throw,  with  the  energy  of  the  elemental  forces  of  nature,  and  project  this 
enemy  of  two  races  of  men  into  that  vast  region,  there  forever  to  exist  in  a  solitude 
eternal  as  life,  or  as  the  absence  of  life,  emblematical  of,  if  not  really,  that  "outer 
darkness"  of  which  the  Savior  of  man  spoke  in  warning  to  those  who  are  the 
enemies  of  themselves,  of  their  race  and  of  their  God. 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  397 

Cicero,  I  think  it  is,  who  says  that  a  lawyer  should  know 
everything,  for  sooner  or  later  there  is  no  fact  in  history,  in 
science,  or  of  human  knowledge  that  will  not  come  into  play 
in  his  arguments.  Painfully  sensible  of  my  ignorance,  being 
devoted  to  a  profession  which  "sharpens  and  does  not  en 
large  the  mind"  I  yet  can  admire  without  envy  the  supe 
rior  knowledge  evinced  by  the  honorable  manager.  Indeed, 
upon  my  soul,  I  believe  he  is  aware  of  an  astronomi 
cal  fact  which  many  professors  of  that  science  are  wholly 
ignorant  of.  But  nevertheless,  while  some  of  his  honorable 
colleagues  were  paying  attention  to  an  unoccupied  and  un 
appropriated  island  on  the  surface  of  the  seas,  Mr.  Manager 
Boutwell,  more  ambitious,  had  discovered  an  untenanted 
and  unappropriated  region  in  the  skies,  reserved,  he  would 
have  us  think,  in  the  final  councils  of  the  Almighty,  as  the 
place  of  punishment  for  convicted  and  deposed  American 
Presidents. 

At  first  I  thought  that  his  mind  had  become  so  "enlarged" 
that  it  was  not  "sharp"  enough  to  discover  the  Constitution 
had  limited  the  punishment;  but  on  reflection  I  saw  that  he 
was  as  legal  and  logical  as  he  was  ambitious  and  astro 
nomical,  for  the  Constitution  has  said  "removal  from 
office,"  and  has  put  no  limit  to  the  distance  of  the  removal 
so  that  it  may  be,  without  shedding  a  drop  of  his  blood,  or 
taking  a  penny  of  his  property,  or  confining  his  limbs,  instant 
removal  from  office  and  transportation  to  the  skies.  Truly, 
this  is  a  great  undertaking;  and  if  the  learned  manager  can 
only  get  over  the  obstacles  of  the  laws  of  nature  the  Con 
stitution  will  not  stand  in  his  way.  He  can  contrive  no 
method  but  that  of  a  convulsion  of  the  earth  that  shall 
project  the  deposed  President  to  this  infinitely  distant  space; 
but  a  shock  of  nature  of  so  vast  an  energy  and  for  so  great 
a  result  on  him  might  unsettle  even  the  footing  of  the  firm 
members  of  Congress.  We  certainly  need  not  resort  to  so 
perilous  a  method  as  that.  How  shall  we  accomplish  it? 


398         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

Why,  in  the  first  place,  nobody  knows  where  that  space  is 
but  the  learned  manager  himself,  and  he  is  the  necessary 
deputy  to  execute  the  judgment  of  the  Court. 

Let  it  then  be  provided  that  in  case  of  your  sentence  of 
deposition  and  removal  from  office  the  honorable  and  astro 
nomical  manager  shall  take  into  his  own  hands  the  execution 
of  the  sentence.  With  the  President  made  fast  to  his  broad 
and  strong  shoulders,  and,  having  already  essayed  the  flight 
by  imagination,  better  prepared  than  anybody  else  to  execute 
it  in  form,  taking  the  advantage  of  ladders  as  far  as  ladders 
will  go  to  the  top  of  this  great  Capitol,  and  spurning  then 
with  his  foot  the  crest  of  Liberty,  let  him  set  out  upon  his 
flight  while  the  two  houses  of  Congress  and  all  the  people 
of  the  United  States  shall  shout,  "Sic  itur  ad  astro," 

But  here  a  distressing  doubt  strikes  me;  how  will  the  man 
ager  get  back.  He  will  have  got  far  beyond  the  reach  of 
gravitation  to  restore  him,  and  so  ambitious  a  wing  as  his 
could  never  stoop  to  a  downward  flight.  Indeed,  as  he 
passes  through  the  constellations,  that  famous  question  of 
Carlyle  by  which  he  derides  the  littleness  of  human 
affairs  upon  the  scale  of  the  measure  of  the  heavens,  "What 
thinks  Boeotes  as  he  leads  his  hunting  dogs  up  the  zenith 
in  their  leash  of  sidereal  fire?"  will  force  itself  on  his  notice. 
What,  indeed,  would  Bceotes  think  of  this  new  constella 
tion? 

Besides,  reaching  this  space,  beyond  the  power  of  Congress 
even  "to  send  for  persons  and  papers"  how  shall  he  return, 
and  how  decide  in  the  contest,  there  become  personal  and 
perpetual,  the  struggle  of  strength  between  him  and  the 
President?  In  this  new  revolution,  thus  established  forever, 
who  shall  decide  which  is  the  sun  and  which  is  the  moon? 
Who  determine  the  only  scientific  test — which  reflects  the 
hardest  upon  the  other? 

If  I  have  been  successful  at  all  in  determining  the  general 
latitude  of  the  imputed  offence  as  not  bringing  it,  under  the 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  399 

circumstances  which  this  evidence  attaches  to  it,  to  the  qual 
ity  and  grade  of  impeachable  offences,  I  may  now  be  pre 
pared,  and  I  hope  with  some  commendable  brevity,  to  notice 
what  I  yet  regard  as  important  to  the  course  of  my  argu 
ment,  and  what  I  assigned  as  the  second  topic  of  it,  to  show 
that  all  else  is  political;  but  I  wish  to  draw  your  attention 
also  to  what  I  think  is  a  matter  of  great  moment,  a  matter 
of  great  concern  and  influence  for  all  statesmen,  and  for  all 
lovers  of  the  Constitution  and  of  the  country — to  the  par 
ticular  circumstances  under  which  the  two  departments  of 
the  Government  now  brought  in  controversy  are  placed.  I 
speak  not  of  persons,  but  of  the  actual  constitutional  pos 
session  of  the  two  departments. 

The  office  of  President  of  the  United  States,  in  the  view 
of  the  framers  of  the  Constitution,  and  in  the  experience  of 
our  national  history,  and  in  the  esteem  of  the  people,  and  in 
the  ambition  of  all  who  aspire  to  that  great  place  by  worthy 
means,  is  an  office  of  great  trust  and  power.  It  has  great  pow 
ers.  They  are  not  monarchical  or  tending  to  monarchy,  be 
cause  the  tenure  of  the  office,  its  source  of  original  commission, 
and  its  return  of  the  trust  to  those  who  control  it,  and  its 
amenability  under  the  Constitution  to  this  process  of  im 
peachment  and  the  authority  of  Congress,  save  it  from  being 
at  all  dangerous  to  the  liberties  of  the  nation.  Yet  it  is, 
and  is  intended  to  be,  an  office  of  great  authority,  and  the 
Constitution  in  its  co-ordinate  department  cannot  be  sus 
tained  without  maintaining  all  the  authority  that  the  Con 
stitution  has  intended  for  this  executive  office.  But  it 
depends  for  its  place  in  the  Constitution  upon  the  fact,  the 
practical  fact,  that  its  authority  is  committed  by  the  suffrage 
of  the  people,  and  that  when  this  authority  is  exerted  it  is 
not  by  individual  purpose  or  will,  or  upon  the  mere  strength 
which  a  single  individual  can  oppose  to  the  collective  power 
of  the  Congress  of  the  United  States.  It  is  because  and  as 
the  people,  who  by  their  suffrage  have  raised  the  President 


400         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

to  his  place,  are  behind  him,  holding  up  his  hands,  speaking 
with  his  voice,  sustaining  him  in  his  high  duties,  that  the 
President  has  the  place  and  can  maintain  it  under  the 
Constitution. 

This  great  power  is  safe  then  to  the  people  for  the  reasons 
I  have  stated,  and  it  is  safe  to  the  President  because  the 
people  are  behind  him  and  have  just  exhibited  their  confi 
dence  by  the  suffrage  that  has  promoted  him.  When, 
however,  alas,  our  Constitution  comes  to  this  trial  that  one 
is  lifted  to  the  presidential  office  who  has  not  received  the 
suffrage  of  the  people  for  that  office,  then  at  once  discord, 
dislocation,  deficiency,  difficulty  show  themselves;  then  at 
once  the  great  powers  of  the  office  which  were  consonant 
with  a  free  constitution  and  with  the  supremacy  of  popular 
will,  by  the  fact  that  for  a  brief  term  the  breath  of  life  of  the 
continuing  favor  of  the  people  gave  them  efficacy  and 
strength,  find  no  support  in  fact.  Then  it  is  that  in  the 
criticisms  of  the  press,  in  the  estimates  of  public  men,  in 
the  views  of  the  people,  these  great  powers,  strictly  in  trust 
and  within  the  Constitution,  seem  to  be  despotic  and  per 
sonal.  And  then,  if  we  will  give  due  force  to  another  diffi 
culty  that  our  system  of  vicious  politics  has  introduced,  and 
that  is  that  in  the  nomination  for  the  two  offices,  selecting 
always  the  true  leader  of  the  popular  sentiment  of  the  time 
for  the  place  of  President,  we  look  about  for  a  candidate  for 
the  Vice-Presidency  to  attract  minority  and  to  assuage  differ 
ences,  and  to  bring  in  inconsistent  support,  and  make  him 
different  from  the  President  in  political  position  and  in 
general  circumstances  for  popular  support,  and  couple  with 
the  fact  that  I  have  spoken  of  in  the  Constitution,  and  which 
belongs  to  it,  this  vice  in  our  politics,  then  when  the  Vice- 
President  becomes  President  of  the  United  States,  not  only 
is  he  in  the  attitude  of  not  having  the  popular  support  for 
the  great  powers  of  the  Constitution,  but  he  is  in  the  condi 
tion  of  not  having  the  party  support  for  the  fidelity  and  main- 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  401 

tenance  of  his  authority  that  are  necessary.  Then,  adhering 
to  his  original  opinions,  to  the  very  opinions  and  political 
attitude  which  form  the  argument  for  placing  him  in  the 
second  place  of  authority,  he  is  denounced  as  a  traitor  to 
his  party,  and  is  watched  and  criticised  by  all  the  leaders  of 
that  party. 

I  speak  not  particularly  in  reference  to  the  present 
presidential  term  and  its  incumbent,  and  the  actual  condi 
tion  of  politics  here;  I  speak  of  the  very  nature  of  the  case. 
All  the  public  men,  all  the  ambitious  men,  nay,  all  the  men 
interested  in  the  public  service,  in  carrying  on  the  Govern 
ment  for  the  purposes  and  with  the  views,  in  the  interest  of 
duty,  of  the  party,  have  made  their  connections,  and  formed 
their  views,  established  their  relations  with  the  President 
who  has  disappeared.  They  then  are  not  in  the  attitude  of 
support,  personal  or  political,  that  may  properly  be  main 
tained  among  the  leaders  of  a  party,  and  that  is  implied 
in  the  fact  that  an  election  has  taken  place  by  the  joint 
efforts,  crowning  in  the  final  result  the  President  of  the  selec 
tion  of  the  people.  Then  it  is  that  high  words  are  inter 
changed.  Then  it  is  that  ambitious  men,  who  had  framed 
their  purposes,  both  for  the  present  and  for  the  future,  upon 
the  footing  of  the  presidential  predominance  that  had  been 
secured  by  the  election,  find  these  plans  dislocated  and  dis 
turbed;  and  then  it  is  that  if  wisdom  and  prudence  and  the 
personal  qualities  of  pacification  and  of  accommodation  and 
of  attraction  are  wanting  upon  the  one  side  and  the  other, 
terrible  evils  threaten  the  conduct  of  the  Government  and 
the  peace  of  the  State.  It  was  thus,  as  we  all  know  by  look 
ing  back  to  the  experience  of  the  whig  party,  that  differ 
ences,  even  in  times  of  peace  and  of  quiet,  had  been  urged 
so  far  in  the  presidency  of  Mr.  Tyler,  that  an  impeachment 
was  moved  against  him  in  the  House  of  Representatives, 
and  had  more  than  one  hundred  supporters;  and  yet  when  it 
was  all  over,  nobody,  I  think,  could  have  dreamed  that  there 


402         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

was  anything  in  the  conduct  of  Mr.  Tyler,  in  the  matter 
complained  of,  that  was  just  ground  for  impeachment. 
So,  too,  in  great  part  during  the  incumbency  of  Mr.  Fillmore, 
elevated  to  the  presidency,  his  action  and  his  course,  tem 
pered  and  moderated  as  it  was  by  some  of  the  personal  quali 
ties  that  I  have  stated,  was  yet  carried  on  in  resistance  to  the 
leading  ideas  of  the  party  that  had  raised  him  to  power. 

Then  the  opposition,  seizing  upon  this  opportunity,  en 
courage  the  controversy,  urge  on  the  quarrel,  but  do  not 
espouse  it,  and  thus  it  ends  in  the  President  being  left  with 
out  the  support  of  the  currents  of  authority  that  underlie 
and  vivify  the  Constitution  of  the  United  States — the  favor 
of  the  people;  and  so  when  this  unfortunate,  this  irregular 
condition  of  the  executive  office  concurs  with  times  of  great 
national  juncture,  of  great  and  serious  oppression  and  diffi 
culty  of  public  affairs,  then  at  once  you  have  at  work  the 
special,  the  peculiar,  the  irregular  operation  of  forces  that 
expose  the  Constitution,  left  unprotected  and  undefended 
with  the  full  measure  of  support  that  every  department  of 
the  Government  should  have  to  resist  the  other,  pressing  on 
to  dangers  and  to  difficulties  that  may  shake  and  bring  down 
the  pillars  of  the  Constitution  itself. 

I  suggest  this  to  you  as  wise  men,  to  understand  how  out  of 
circumstances,  for  which  no  man  is  responsible,  attributable 
to  the  working  of  the  Constitution  itself,  in  this  effort  to 
provide  a  successor,  and  to  the  inattention  paid  to  it  in  the 
suffrages  of  the  people  and  the  selections  of  the  politicians, 
how  there  is  a  weakness,  and  a  special  weakness,  that  the 
presidency  is,  as  it  were,  an  undefended  fort,  and  see  to  it 
that  the  invasion  is  not  urged  and  made  successful  by  the 
temptation  thus  presented. 

This  exception,  weakness  of  the  presidency  under  our 
Constitution,  is  encountered  in  the  present  state  of  affairs 
by  an  extraordinary  development  of  party  strength  in  the 
Congress.  There  are  in  the  Constitution  but  three  barriers 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  403 

against  the  will  of  a  majority  of  Congress  within  the  scope 
of  their  authority.  One  is  that  it  requires  a  two-thirds  vote 
to  expel  a  member  of  either  house;  another  that  a  two-thirds 
vote  is  necessary  to  pass  a  law  over  the  objections  of  the 
President;  and  another,  that  a  two-thirds  vote  of  the  Senate, 
sitting  as  a  court  for  the  trial  of  impeachment,  is  requisite  to 
a  sentence.  And  now  how  have  these  two  last  protections 
of  the  executive  office  disappeared  from  the  Constitution  in 
its  practical  working  by  the  condition  of  parties  that  has 
given  to  one  the  firm  possession  by  a  three-fourths  vote,  I 
think  in  both  houses,  of  the  control  of  the  action  of  each 
body  of  the  legislature?  Reflect  upon  this.  I  do  not  touch 
upon  the  particular  circumstance  that  the  non-restoration 
of  the  southern  States  has  left  your  numbers  in  both  houses 
of  Congress  less  than  they  might  under  other  circumstances 
be.  I  do  not  calculate  whether  that  absence  diminishes  or 
increases  the  disproportion  that  there  would  be.  Possibly 
their  presence  might  even  aggravate  the  political  majority 
which  is  thus  arrayed  and  thus  overrides  practically  all  the 
calculations  of  the  presidential  protection  through  the  guar 
antees  of  the  Constitution;  for,  what  do  the  two-thirds 
provisions  mean?  They  meant  that  in  a  free  country, 
where  elections  were  diffused  over  a  vast  area,  no  congress 
man  having  a  constituency  of  over  seventy  or  eighty  thou 
sand  people,  it  was  impossible  to  suppose  that  there  would 
not  be  a  somewhat  equal  division  of  parties,  or  impossible 
to  suppose  that  the  excitements  and  zeal  of  party  could 
carry  all  the  members  of  it  into  any  extravagance.  I  do  not 
call  them  extravagances  in  any  sense  of  reproach;  I  merely 
speak  of  them  as  the  extreme  measures  that  parties  in  poli 
tics,  and  under  whatever  motives,  may  be  disposed  to  adopt. 
Certainly,  then,  there  is  ground  to  pause  and  consider, 
before  you  bring  to  a  determination  this  great  struggle 
between  the  co-ordinate  branches  of  the  Government,  this 
agitation  and  this  conclusion  in  a  certain  event  of  the  ques- 


404         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

tion  whether  the  co-ordination  of  the  Constitution  can  be 
preserved.  Attend  to  these  special  circumstances  and  deter 
mine  for  yourselves  whether  under  these  influences  it  is  best 
to  urge  a  contest  which  must  operate  upon  the  framework 
of  the  Constitution,  and  its  future,  unattended  by  any  excep 
tions  of  a  peculiar  nature  that  govern  the  actual  situation. 
Ah,  that  is  the  misery  of  human  affairs,  that  the  stress 
comes  and  has  its  consequence  when  the  system  is  least 
prepared  to  receive  it.  It  is  the  misery  that  disease,  casual, 
circumstantial,  invades  the  frame  when  health  is  depressed 
and  the  powers  of  the  constitution  to  resist  it  are  at  the 
lowest  ebb.  It  is  that  the  gale  rises  and  sweeps  the  ship  to 
destruction  when  there  is  no  sea-room  for  it  and  when  it  is 
upon  a  lee-shore.  And  if  concurrent  with  that  danger  to  the 
good  ship  her  crew  be  short,  her  helm  unsettled,  and  disorder 
begins  to  prevail,  there  comes  to  be  a  final  struggle  for  the 
maintenance  of  mastery  against  the  elements  and  over  the 
only  chances  of  safety,  how  wretched  is  the  condition  of 
that  people  whose  fortunes  are  embarked  in  that  ship  of 
state! 

What  other  protection  is  there  for  the  presidential  office 
than  these  two-thirds  guarantees  of  the  Constitution  that 
have  disappeared?  The  Supreme  Court  placed  there  to 
determine,  among  the  remarkable  provinces  of  its  jurisdiction, 
the  lines  of  separation  and  of  duty  and  of  power  under  our 
Constitution  between  the  legislature  and  the  President. 
Ah!  under  this  evidence,  received  and  rejected,  the  very 
effort  of  the  President  was,  when  the  two-thirds  majorities 
had  urged  the  contest  against  him,  to  raise  a  case  for  the 
Supreme  Court  to  decide;  and  then  the  legislature,  coming 
in  by  its  special  condition  of  impeachment,  intercepts  the 
effort,  and  brings  his  head  again  within  the  mere  power  of 
Congress,  where  the  two-thirds  rule  is  equally  ineffectual 
as  between  the  parties  to  the  contest. 

This  is  matter  of  grave  import,  of  necessary  consideration, 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  405 

and  which,  with  the  people  of  this  country,  with  watchful 
foreign  nations,  and  in  the  eyes  of  history,  will  be  one  of  the 
determining  features  of  this  great  controversy;  for  great  as 
is  the  question  in  the  estimate  of  the  managers  or  of  ourselves 
or  of  the  public  intelligence  of  this  people,  of  how  great  the 
power  should  be  on  one  side  or  the  other,  with  Congress  or 
with  the  President,  that  question  sinks  into  absolute  insig 
nificance  compared  with  the  greater  and  higher  question,  the 
question  that  has  been  in  the  Constitution,  that  has  been  in 
the  minds  of  philosophers,  of  publicists,  and  of  statesmen 
since  it  was  founded,  whether  it  was  in  the  power  of  a  written 
constitution  to  draw  lines  of  separation  and  put  up  buttresses 
of  defence  between  the  co-ordinate  branches  of  the  Govern 
ment?  And  with  that  question  settled  adversely  with  a 
determination  that  one  can  devour,  and  having  the  power, 
will  devour  the  other,  then  the  balances  of  the  American 
Constitution  are  lost  and  lost  forever.  Nobody  can  rein 
state  in  paper  what  has  once  been  struck  down  in  fact. 
Mankind  are  governed  by  instances,  not  by  resolutions. 

And  then,  indeed,  there  is  placed  before  the  people  of  this 
country  either  despair  at  the  theory  of  paper  constitutions, 
which  have  been  derided  by  many  foreign  statesmen,  or 
else  an  attempt  to  establish  new  balances  of  power  by  which, 
the  poise  of  the  different  departments  being  more  firmly 
placed,  one  can  be  safe  against  the  other.  But  who  can  be 
wiser  than  our  fathers?  Who  can  be  juster  than  they? 
Who  can  be  more  considerate  or  more  disinterested  than 
they?  And  if  their  descendants  have  not  the  virtue  to  main 
tain  what  they  so  wisely  and  so  nobly  established,  how  can 
these  same  descendants  hope  to  have  the  virtue  and  the 
wisdom  to  make  a  better  establishment  for  their  posterity? 

Nay,  Senators,  I  urge  upon  you  to  consider  whether  you 
will  not  recoil  from  settling  so  tremendous  a  subject  under 
so  special,  so  disadvantageous,  so  disastrous  circumstances 
as  I  have  portrayed  to  you  in  the  particular  situation  of 


406         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

these  branches  of  the  Government.  A  stronger  Executive, 
with  an  absolute  veto,  with  a  longer  term,  with  more  per 
manent  possession  and  control  of  official  patronage,  will  be 
necessary  for  the  support  of  this  executive  department,  if 
the  wise  and  just  and  considerate  measure  of  our  ancestors 
shall  not  prove,  in  your  judgment,  sufficient;  or,  if  that  be 
distasteful,  if  that  be  unacceptable,  if  that  be  inadmissible, 
then  we  must  swing  it  all  over  into  the  omnipotence  of 
Congress,  and  recur  to  the  exploded  experiment  of  the  con 
federation,  where  Congress  was  executive  and  legislative,  all 
in  one. 

There  is  one  other  general  topic,  not  to  be  left  unnoticed 
for  the  very  serious  impression  that  it  brings  upon  the  politi 
cal  situation  which  forms  the  staple — I  must  say  it — of  the 
pressure  on  the  part  of  the  managers  to  make  out  a  crime,  a 
fault,  a  danger  that  should  enlist  your  action  in  the  terrible 
machinery  of  impeachment  and  condemnation.  I  mean  the 
very  peculiar  political  situation  in  the  country  itself  and 
in  the  administration  of  this  Government  over  the  people 
of  the  country,  which  has  been  the  womb  from  which  has 
sprung  this  disorder  and  conflict  between  the  departments 
of  the  government.  I  can,  I  think,  be  quite  brief  about  it, 
and  certainly  shall  not  infringe  upon  any  of  the  political 
proprieties  of  the  occasion. 

The  suppression  of  an  armed  rebellion  and  the  reduction 
of  the  revolted  States  to  the  power  of  the  Government,  when 
the  region  and  the  population  embraced  in  the  rebellion 
were  so  vast,  and  the  head  to  which  the  revolt  had  come  was 
so  great,  and  the  resistance  so  continuous,  left  a  problem  of 
as  great  difficulty  in  human  affairs  as  was  ever  proposed  to 
the  actions  of  any  government.  The  work  of  pacification 
would  have  been  a  severe  task  for  any  government  after  so 
great  a  struggle,  when  so  great  passions  were  enlisted,  when 
so  great  wounds  had  been  inflicted,  when  so  great  discontents 
had  urged  the  controversy,  and  so  much  bitterness  had  sur- 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  407 

vived  its  formal  settlement;  but  wonderful  to  say,  with 
this  situation,  so  difficult  as  to  surpass  almost  the  powers  of 
government  as  exhibited  in  any  former  instance  in  the  his 
tory  of  the  world,  there  occurred  a  special  circumstance  that 
by  itself  would  have  tasked  all  the  resources  of  statesman 
ship  under  even  a  simple  government.  I  mean  the  emanci 
pation  of  the  slaves,  which  had  thrown  four  millions  of  human 
beings,  not  by  the  processes  of  peace,  but  by  the  sudden  blow 
of  war,  into  the  possession  of  their  freedom,  which  had 
changed  at  once,  against  their  will,  the  relation  of  all  the 
rest  of  the  population  to  these  men  that  had  been  their 
slaves. 

The  process  of  adaptation  of  society  and  of  law  to  so  grave 
a  social  change  as  that,  even  when  accomplished  in  peace, 
and  when  not  disturbed  by  the  operations  of  war  and  by  the 
discontents  of  a  suppressed  rebellion,  are  as  much  as  any 
wisdom  or  any  courage,  or  any  prosperity  that  is  given  to 
government,  can  expect  to  ride  through  in  safety  and  peace. 
When,  then,  these  two  great  political  facts  concur  and  press 
upon  the  Government  that  is  responsible  for  their  conduct, 
how  vast,  how  difficult,  how  intractable  and  unmanageable 
seems  the  posture ! 

But  this  does  not  represent  the  measure  or  even  the  prin 
cipal  feature  of  the  difficulty.  When  the  government,  whose 
arms  have  triumphed  and  suppressed  resistance  is  itself,  by 
the  theory  and  action  of  the  Constitution,  the  government 
that,  by  peaceful  law,  is  to  maintain  its  authority,  the  process 
is  simple;  but  under  our  complex  Government,  according  to 
the  theory  and  the  practice,  the  interests  and  the  feelings, 
the  restored  Constitution  surrenders  their  domestic  affairs 
at  once  to  the  local  governments  of  the  people  who  have  been 
in  rebellion.  And  then  arises  what  has  formed  the  staple 
of  our  politics  for  the  last  four  years,  what  has  tried  the 
theory,  the  wisdom,  the  courage,  the  patriotism  of  all.  It 
is,  how  far,  under  the  Constitution  as  it  stands,  the  General 


408         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

Government  can  exercise  absolute  control  in  the  transition 
period  between  war  and  absolute,  restored  peace,  and  how 
much  found  to  be  thus  unmanageable  shall  be  committed 
to  changes  of  the  Constitution.  And  when  we  understand 
that  the  great  controversy  in  the  formation  of  the  Constitu 
tion  itself  was  how  far  the  General  Government  should  be 
intrusted  with  domestic  concerns,  and  when  the  final  triumph 
and  the  general  features  of  the  Constitution  that  the  people 
of  the  States  were  not  willing,  in  the  language  of  Mr.  Ells 
worth,  to  intrust  the  General  Government  with  their  domestic 
interests,  we  see  at  once  how  wide,  how  dangerous,  how 
difficult  the  arena  of  controversy,  of  constitutional  law  and 
of  difference  of  opinion  as  to  what  was  or  is  constitutional, 
and  if  it  be  not,  of  what  changes  shall  be  or  ought  to  be 
made  in  the  Constitution  to  meet  the  practical  situation. 

Then  when  you  add  to  this  that  as  people  divide  on  these 
questions,  and  as  the  practical  forces  on  one  side  and  the 
other  are  the  loyal  masses  and  the  rebel  masses,  whoever 
divides  from  his  neighbor,  from  his  associate,  from  his  party 
adherents  in  that  line  of  constitutional  opinion  and  in  that 
line  of  governmental  action,  which  seems  to  press  least 
changes  upon  the  Constitution  and  least  control  upon  the 
masses  lately  in  rebellion,  will  be  suspected  and  charged  and 
named  and  called  an  ally  of  traitors  and  rebels,  you  have  at 
once  disclosed  how  our  dangerous  politics  have  been  brought 
to  the  head  in  which  these  names  of  "traitor"  and  of  "rebel," 
which  belong  to  war,  have  been  made  the  current  phrases  of 
political  discussion. 

I  do  not  question  the  rectitude  nor  do  I  question  the 
wisdom  of  any  positions  that  have  been  taken  as  matter  of 
argument  or  as  matter  of  faith  or  as  matter  of  action  in  the 
disposition  of  this  peculiar  situation.  I  only  attract  your 
attention  to  the  necessities  and  dangers  of  the  situation 
itself.  We  were  in  the  condition  in  which  the  question  of 
the  surrender  to  the  local  communities  of  their  domestic 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  409 

affairs,  which  the  order  of  the  Constitution  had  arranged  for 
the  peaceful  situation,  became  impossible  without  the  gravest 
dangers  to  the  State,  both  in  respect  to  the  public  order  and 
in  respect  to  this  changed  condition  of  the  slave. 

In  English  history  the  Commons  were  urged,  after  they 
had  rejected  the  king  from  the  British  constitution  and  found 
the  difficulty  of  making  things  work  smoothly,  stare  supra 
antiquas  vias;  but,  said  Sergeant  Maynard,  "It  is  not  the 
question  of  standing  upon  the  ancient  ways,  for  we  are  not 
on  them."  The  problem  of  the  Constitution  is,  as  it  was 
then,  how  to  get  upon  the  ancient  ways  from  these  paths 
that  disorder  and  violence  and  rebellion  had  forced  us  into; 
and  here  it  was  that  the  exasperations  and  the  exacerbations 
of  politics  came  up  mingling  with  charges  of  infidelity  to 
party  and  with  treason,  moral  treason,  political  treason,  I 
suppose,  to  the  state.  How  many  theories  did  we  have? 

In  this  Senate,  if  I  am  not  mistaken,  one  very  influential 
and  able  and  eloquent  senator  was  disposed  to  press  the 
doctrines  of  the  Declaration  of  Independence  into  being 
working  forces  of  our  constituted  liberty,  and  a  sort  of  pre- 
constitutional  theory  was  adopted  to  suit  the  logical  and 
political  difficulties  of  the  case.  In  another  House  a  great 
leader  was  disposed  to  put  it  upon  the  trans-constitutional 
necessities  that  the  situation  itself  imposed  in  perfect  peace 
as  in  absolute  and  flagrant  war.  And  thus  it  was  that  minds 
trained  in  the  old  school,  attached  to  the  Constitution,  un 
able  as  rhetoricians  or  as  reasoners  to  adopt  these  learned 
phrases  and  these  working  theories  of  preconstitutional  or 
trans-constitutional  authority  and  obligation,  were  puzzled 
among  the  ruins  of  society  that  the  war  had  produced;  and 
thus,  as  it  seems  to  me,  we  find  these  concurring  dangers 
leading  ever  to  an  important  and  necessary  recognition,  by 
whoever  has  to  deal  with  them,  of  the  actual  and  practical 
influences  that  they  have  upon  the  controversy. 

And  now  let  me  urge  here  that  all  this  is  within  the  prov- 


410         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

ince  of  politics;  and  a  free  people  are  unworthy  of  their 
freedom  and  cannot  maintain  it  if  their  public  men,  their 
chosen  servants,  are  not  able  to  draw  distinctions  between 
legal  and  constitutional  offence  and  odious  or  even  abomi 
nable  politics.  Certainly  it  is  so.  Idem  sentire  de  republicd, 
to  agree  in  opinion  concerning  the  public  interest  is  the 
bond  of  one  party,  and  diversity  from  those  opinions  the 
bond  of  the  other;  and  where  passions  and  struggles  of  force 
in  any  form  of  violence  or  of  impeachment  as  an  engine  of 
power  come  into  play,  then  freedom  has  become  license,  and 
then  party  has  become  faction,  and  those  who  do  not  with 
hold  their  hand  until  the  ruin  is  accomplished  will  be  subject 
to  that  judgment  that  temperance  and  fortitude  and  patience 
were  not  the  adequate  qualities  for  their  conduct  in  the 
situation  in  which  they  were  placed.  Oh,  why  not  wise 
enough  to  stay  the  pressure  till  adverse  circumstances  shall 
not  weigh  down  the  state?  Why  not  in  time  remember  the 
political  wisdom — 

Beware  of  desperate  steps.     The  darkest  day, 
Live  till  to-morrow,  will  have  passed  away. 

I  hold  in  my  hand  an  article  from  the  Tribune,  written 
under  the  instructions  of  this  trial  and  put  with  great  force 
and  skill.  I  do  not  propose  to  read  it.  I  bring  it  here  to 
show  and  to  say  that  it  is  an  excellent  series  of  articles  of 
impeachment  against  the  President  of  the  United  States 
within  the  forum  of  politics  for  political  repugnancy  and 
obstruction,  and  an  honest  confession  that  the  technical 
and  formal  crimes  included  in  these  articles  are  of  very 
paltry  consideration.  That  is  an  excellent  article  of  im 
peachment,  demanding  by  process  suitable  to  the  forum,  an 
answer;  and  for  the  discussions  of  the  hustings  and  of  the 
election,  there  it  belongs;  there  it  must  be  kept.  But  this 
being  a  Court,  we  are  not  to  be  tried  for  that  in  which  we  are 
not  inculpated.  How  wretched  the  condition  of  him  who 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  411 

is  to  be  thus  oppressed  by  a  vague,  uncertain  shadow  which 
he  cannot  oppose  or  resist !  If  the  honorable  managers  will 
go  back  to  the  source  of  their  authority,  if  they  will  obtain 
what  was  once  denied  them,  a  general  and  open  political 
charge,  it  may,  for  aught  I  know,  be  maintainable  in  law; 
it  may  be  maintainable  in  fact;  but  then  it  would  be  brought 
here;  it  would  be  written  down;  its  dimensions  would  be 
known  and  understood;  its  weight  would  be  estimated;  the 
answer  could  be  made. 

And  then  your  leisure  and  that  of  the  nation  being  occu 
pied  with  hearing  witnesses  about  political  differences  and 
the  question  of  political  repugnance  and  obstructions  upon 
the  side  of  the  President,  those  who  should  be  honored  with 
his  defence  in  that  political  trial  would  at  least  have  the 
opportunity  of  reducing  the  force  of  the  testimony  against 
them,  and  of  bringing  opposing  and  contravening  proofs; 
and  then,  at  least,  if  you  would  have  a  political  trial,  you 
would  have  it  with  name  and  with  substance  to  rest  upon. 
But  the  idea  that  a  President  of  the  United  States  is  to  be 
brought  into  the  procedure  of  this  Court  by  a  limited  accusa 
tion,  found  "not  guilty"  under  that,  and  convicted  on  an 
indictment  that  the  House  refused  to  sustain,  or  upon  that 
wider  indictment  of  the  newspaper  press,  and  without  an 
opportunity  to  bring  proof  or  to  make  arguments  on  the 
subject,  seems  to  us  too  monstrous  for  any  intelligence  within 
or  without  this  political  circle,  this  arena  of  controversy,  to 
maintain  for  a  moment. 

I  may  hope,  somewhat  briefly,  to  draw  your  attention  to 
what  lies  at  the  basis  of  the  discussion  of  the  power  and 
authority  that  may  be  rightfully  exercised  or  reasonably  be 
assumed  in  the  action  of  the  President  to  be  exercised,  even 
if  it  should  prove  erroneous  within  the  premises  of  this  mat 
ter  between  the  two  branches  of  the  Government. 

The  co-ordination  of  the  powers  of  government  is  not  only 
the  greatest  effort  in  the  frame  of  a  written  constitution,  but 


412         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

I  think  it  must  be  conceded  that  as  it  occupies  the  main 
portion  of  the  Constitution  itself,  so  it  has  been  regarded  by 
all  competent  critics,  at  home  and  abroad,  to  have  been  a 
work  most  successfully  accomplished  by  the  framers  of  our 
Government.  Indeed,  if  you  will  look  at  the  Constitution, 
you  will  find  that  beyond  that  very  limited  though  very 
important  service,  of  dividing  what  belongs  to  government 
and  what  shall  be  left  to  the  liberties  of  the  people,  and  then 
discriminating  between  what  shall  be  accorded  to  the  general 
government  and  what  shall  be  left  to  the  domestic  govern 
ments  of  the  States,  the  whole  service  of  the  Constitution  is 
to  build  up  these  three  departments  of  the  Government  so 
that  they  shall  have  strength  to  stand  as  against  the  others, 
and  not  strength  to  encroach  or  overthrow. 

Much  has  been  said  about  Congress  as  being  the  great 
repository  of  power.  Why,  of  course  it  is.  It  is  the  reposi 
tory  of  power  and  of  will,  and  there  is  no  difficulty  in  making 
Congress  strong  enough.  Congress,  that  must  be  intrusted 
with  all  the  strings  of  power  and  furnished  with  all  its  re 
sources,  the  effort  of  the  Constitution  is  to  curb  and  restrain; 
and  so  you  will  find  that  almost  all  the  inhibitions  of  the 
Constitution  are  placed  upon  Congress — upon  Congress  in 
withholding  it  from  power  over  the  people;  upon  Congress 
in  withholding  it  from  power  over  the  States;  upon  Congress 
in  withholding  it  from  power  over  the  co-ordinate  branches; 
and,  nevertheless,  by  a  necessary  and  absolute  deposit  of 
authority  in  Congress,  it  is  left  master  of  the  whole.  This 
power  of  Parliament  in  the  British  constitution  makes  the 
Commons  masters  of  the  Government.  To  what  purpose  is 
it  to  provide  that  the  justices  of  the  Supreme  Court  shall 
hold  their  tenure  for  life,  and  that  their  salaries  shall  not  be 
diminished  during  the  term  of  their  service,  when  Congress, 
by  an  undoubted  constitutional  power,  may  omit  and  refuse 
to  appropriate  one  dollar  to  the  support  of  any  particular 
justice  during  any  particular  year  or  series  of  years?  Never- 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  413 

theless,  the  Government  is  to  be  administered  by  men,  and 
in  an  elective  government  the  trust  is  that  the  selected 
agents  of  the  people  will  be  faithful  to  their  interest  and  will 
be  endowed  with  sufficient  intelligence  to  protect  them. 

But  simple  as  is  the  constitution  of  the  judiciary,  and 
needing  no  care,  when  you  come  to  the  executive  authority, 
arises  the  problem  which  has  puzzled,  does  puzzle,  will 
puzzle  all  framers  of  government  having  no  source  and  no 
ideas  of  authority,  except  what  springs  from  the  elective 
suffrage.  You  have  the  balance  of  the  British  constitution 
between  the  Crown  and  the  Parliament,  because  it  rests 
upon  ideas  and  traditions  and  experience  which  have  framed 
one  portion  of  the  Government  as  springing  up  from  the 
people  and  in  their  right,  and  the  other  portion  of  the  Govern 
ment  as  descending  from  Divine  authority  and  in  its  right; 
and  you  have  no  difficulty  in  enlarging,  confirming,  and 
bracing  up  the  authority  of  Parliament,  provided  you  leave 
standing  the  authority  and  majesty  of  the  throne.  But 
here  the  problem  is,  how,  without  the  support  of  nobility, 
of  the  fountain  of  honor,  of  time,  of  strength,  of  inheritance, 
how  under  a  suffrage  and  for  a  brief  period  to  make  an  execu 
tive  that  is  strong  enough  to  maintain  itself  against  the 
contentions  of  the  Constitution. 

Under  these  circumstances,  and  adjusting  the  balance  as 
it  is  found  in  the  Constitution,  our  ancestors  disposed  of  the 
question.  It  has  served  us  to  this  time.  Sometimes,  in 
the  heat  of  party,  the  Executive  has  seemed  too  strong; 
sometimes,  in  the  heat  of  party,  Congress  has  seemed  too 
strong;  yet  every  contest  and  every  danger  passes  away, 
managed,  administered,  controlled,  protected  by  the  great, 
superior,  predominant  interest  and  power  of  the  people 
themselves.  And  the  essence  of  the  Constitution  is,  that 
there  is  no  period  granted  by  it  of  authority  to  the  Senate 
in  their  six  years'  term,  to  the  President  in  his  four  years' 
term,  to  the  House  of  Representatives  in  their  two  years' 


414         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

term,  no  period  that  cannot  be  lived  through  in  patience 
subordinate  and  obedient  to  the  Constitution;  and  that,  as 
was  said  in  the  debate  which  I  read  from  the  convention, 
applied  to  the  particular  topic  of  impeachment,  there  will 
be  no  danger  when  a  four  years'  recurring  election  restores 
to  the  common  master  of  Congress  and  the  Executive  the 
trust  reposed,  that  there  will  be  a  temptation  to  carry,  for 
political  controversy  and  upon  political  offence,  the  sword  of 
the  Constitution,  and  make  it  peremptory  and  final  in  the 
destruction  of  the  office. 

I  beg  leave,  in  connection  with  this  subject,  its  delicacy, 
its  solicitudes  in  the  arrangement  of  constitutional  power, 
to  read  two  passages  from  a  great  statesman,  whose  words 
when  he  was  alive  were  as  good  as  anybody's,  and  since  his 
death  have  not  lost  their  wisdom  with  his  countrymen;  I 
mean  Mr.  Webster.  In  his  debate  upon  the  Panama  mis 
sion  he  said,  in  speaking  of  the  question  of  the  confidence 
of  Congress  in  the  Executive: 

This  seems  a  singular  notion  of  confidence,  and  certainly  is  not 
my  notion  of  that  confidence  which  the  Constitution  requires  one 
branch  of  the  government  to  repose  in  another.  The  President 
is  not  our  agent,  but,  like  ourselves,  the  agent  of  the  people. 
They  have  trusted  to  his  hands  the  proper  duties  of  his  office; 
and  we  are  not  to  take  those  duties  out  of  his  hands  from  any 
opinion  of  our  own  that  we  should  execute  them  better  ourselves. 
The  confidence  which  is  due  from  us  to  the  Executive  and  from  the 
Executive  to  us  is  not  personal,  but  official  and  constitutional.  It 
has  nothing  to  do  with  individual  likings  or  dislikings:  but  re 
sults  from  that  division  of  power  among  departments  arid  those 
limitations  on  the  authority  of  each  which  belong  to  the  nature 
and  frame  of  our  Government.  It  would  be  unfortunate,  indeed, 
if  our  line  of  constitutional  action  were  to  vibrate  backward  and 
forward  according  to  our  opinions  of  persons,  swerving  this  way 
to-day  from  undue  attachment,  and  the  other  way  to-morrow 
from  distrust  or  dislike.  This  may  sometimes  happen  from  the 
weakness  of  our  virtues  or  the  excitement  of  our  passions;  but  I 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  415 

trust  it  will  not  be  coolly  recommended  to  us  as  the  rightful  course 
of  public  conduct.     (Webster's  Works,  vol.  3,  p.  187.) 

Again,  in  his  speech  on  the  presidential  protest  in  the 
Senate  in  1834,  he  said: 

The  first  object  of  a  free  people  is  the  preservation  of  their 
liberty,  and  liberty  is  only  to  be  preserved  by  maintaining  consti 
tutional  restraints  and  just  division  of  political  power.  Nothing 
is  more  deceptive  or  more  dangerous  than  the  pretence  of  a  desire 
to  simplify  government.  The  simplest  governments  are  despo 
tisms;  the  next  simplest,  limited  monarchies;  but  all  republics,  all 
governments  of  law,  must  impose  numerous  limitations  and  quali 
fications  of  authority  and  give  many  positive  and  many  qualified 
rights.  In  other  words,  they  must  be  subject  to  rule  and  regula 
tion.  This  is  the  very  essence  of  free  political  institutions.  The 
spirit  of  liberty  is,  indeed,  a  bold  and  fearless  spirit;  but  it  is  also 
a  sharp-sighted  spirit;  it  is  a  cautious,  sagacious,  discriminating, 
far-seeing  intelligence;  it  is  jealous  of  encroachment,  jealous  of 
power,  jealous  of  man.  It  demands  checks;  it  seeks  for  guards; 
it  insists  on  securities;  it  entrenches  itself  behind  strong  defences, 
and  fortifies  itself  with  all  possible  care  against  the  assaults  of 
ambition  and  passion.  It  does  not  trust  the  amiable  weaknesses 
of  human  nature,  and,  therefore,  it  will  not  permit  power  to  over 
step  its  prescribed  limits,  though  benevolence,  good  intent,  and 
patriotic  purpose  come  along  with  it.  Neither  does  it  satisfy  itself 
with  flashy  and  temporary  resistance  to  illegal  authority.  Far 
otherwise.  It  seeks  for  duration  and  permanence;  it  looks  before 
and  after;  and,  building  on  the  experience  of  ages  which  are  past, 
it  labors  diligently  for  the  benefit  of  ages  to  come.  This  is  the 
nature  of  constitutional  liberty;  and  this  is  our  liberty,  if  we  will 
rightly  understand  and  preserve  it.  Every  free  government  is 
necessarily  complicated  because  all  such  governments  establish 
restraints,  as  well  on  the  power  of  government  itself  as  on  that  of 
individuals.  If  we  will  abolish  the  distinction  of  branches,  and 
have  but  one  branch;  if  we  will  abolish  jury  trials,  and  leave  all 
to  the  judge;  if  we  will  then  ordain  that  the  legislator  shall  him 
self  be  that  judge;  and  if  we  will  place  the  executive  power  in  the 
same  hands,  we  may  readily  simplify  government.  We  may  easily 


416         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

bring  it  to  the  simplest  of  all  possible  forms,  a  pure  despotism. 
But  a  separation  of  departments,  so  far  as  practicable,  and  the 
preservation  of  clear  lines  of  division  between  them,  is  the  funda 
mental  idea  in  the  creation  of  all  our  constitutions;  and,  doubtless, 
the  continuance  of  regulated  liberty  depends  on  maintaining  these 
boundaries.  (Webster's  Works,  vol.  4,  p.  122.) 

I  think  I  need  to  add  nothing  to  these  wise,  these  discrim 
inating,  these  absolute  and  peremptory  instructions  of  this 
distinguished  statesman.  The  difficulty  and  the  danger  are 
exactly  where  this  government  now  finds  them,  in  the  with 
holding  of  the  strength  of  one  department  from  working 
the  ruin  of  another. 

THIRD  DAY,  APRIL  30,   1868 

Mr.  EVARTS.  We  perceive,  then,  Mr.  Chief  Justice  and 
Senators,  that  the  subject  out  of  which  this  controversy 
has  arisen  between  the  two  branches  of  the  Government, 
executive  and  legislative,  touches  the  very  foundations  of 
the  balanced  powers  of  the  Constitution;  and  in  the  argu 
ments  of  the  honorable  managers  it  has  to  some  extent  been 
so  pressed  upon  your  attention.  You  have  been  made  to 
believe  that  so  weighty  and  important  is  the  point  in  contro 
versy  as  to  the  allocation  of  the  power  over  office  included  in 
the  function  of  removal,  that  if  it  is  carried  to  the  credit  of 
the  executive  department  of  this  Government  it  makes  it  a 
monarchy.  Why,  Mr.  Chief  Justice  and  Senators,  what 
grave  reproach  is  this  upon  the  wisdom  and  foresight  and 
civil  prudence  of  our  ancestors  that  have  left  unexamined 
and  unexplored  and  unsatisfied  these  doubts  or  measures 
of  the  strength  of  the  Executive  as  upon  so  severe  a  test  or 
inquiry  of  being  a  monarchy  or  a  free  republic?  I  ask,  with 
out  reading  the  whole  of  it,  your  attention  to  a  passage  from 
the  Federalist,  in  one  of  the  papers  by  Alexander  Hamilton, 
who  meets  in  advance  these  aspersions  that  were  sought  to 
be  thrown  upon  the  establishment  of  the  executive  power  in 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  417 

a  President.  He  there  suggests  in  brief  and  solid  discrimina 
tions  the  distinctions  between  the  Presidency  and  a  mon 
archy,  and  concludes  by  saying  this : 

What  answer  shall  we  give  to  those  who  would  persuade  us  that 
things  so  unlike  resemble  each  other?  The  same  that  ought  to 
be  given  to  those  who  tell  us  that  a  government,  the  whole  power 
of  which  would  be  in  the  hands  of  the  elective  and  periodical 
servants  of  the  people,  is  an  aristocracy,  a  monarchy,  and  a 
despotism. 

But  a  little  closer  attention  both  to  the  history  of  the 
framing  of  the  Constitution  and  to  the  opinions  that  main 
tained  a  contest  in  the  body  of  the  convention,  which  should 
finally  determine  the  general  character  and  nature  of  the 
Constitution,  will  show  us  that  this  matter  of  the  power  of 
removal  or  the  control  of  office,  as  disputable  between  the 
Executive  and  the  Senate,  touches  more  nearly  one  of  the 
other  great  balances  of  the  Constitution;  I  mean  that 
balance  between  the  weight  of  numbers  in  the  people  and 
the  equality  of  States,  irrespective  of  population,  of  wealth, 
and  of  size.  Here  it  is,  if  I  may  be  allowed  to  say  so,  that 
the  opinions  to  which  my  particular  attention  was  drawn  by 
the  honorable  manager  [Mr.  Boutwell],  the  opinions  of 
Roger  Sherman,  had  their  origin.  One  of  the  most  eminent 
statesmen  of  the  last  generation  said  to  me  that  it  was  to 
Mr.  Sherman  and  to  his  younger  colleague,  Mr.  Ellsworth, 
and  to  Judge  Paterson,  of  New  Jersey,  that  we  owed  it, 
more  than  to  all  else  in  that  convention,  that  our  Govern 
ment  was  made  what  the  statesman  pronounced  it  to  be,  the 
best  government  in  the  world,  a  federal  republic,  instead  of 
being  what  it  would  have  been  but  for  those  members  of  the 
convention,  as  this  same  statesman  of  the  last  generation 
expressed  it,  a  consolidated  empire,  the  worst  government  in 
the  world. 

Between  these  two  opinions  it  was  that  the  controversy 

29 


418         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

whether  the  Senate  should  be  admitted  into  a  share  of  the 
executive  power  of  official  appointment,  the  great  arm  and 
strength  of  the  Government  came  into  play;  and  as  a  part  of 
his  firm  maintenance  of  the  equality  of  the  States,  Mr.  Sher 
man  insisted  that  this  participation  should  be  accorded  to 
the  Senate;  and  others  resisted  as  too  great  a  subtraction 
from  the  sum  of  executive  power  to  be  capable  safely  of  this 
distribution  and  frittering  away.  Mr.  Adams,  the  first 
President  of  that  name,  I  am  informed  upon  authority  not 
doubted,  coming  from  the  opinion  of  his  grandson,  died  in 
the  conviction  that  even  the  participation  in  appointment 
that  the  Constitution,  as  construed  and  maintained  in  the 
practice  of  this  Government,  accorded  to  the  Senate  would 
be  the  point  upon  which  the  Constitution  would  fail;  that 
this  attraction  of  power  to  comparatively  irresponsible  and 
unnoticed  administration  in  the  Senate  would  ultimately  so 
destroy  the  strength  of  the  Executive  with  the  people  and 
create  so  great  discontent  with  the  people  themselves  that 
the  Executive  of  their  own  choice,  upon  the  Federal  forces 
and  numbers  which  the  Constitution  gives  to  that  election, 
would  not  submit  to  the  executive  power  thus  bestowed 
being  given  to  a  body  that  had  its  constitution  without  any 
popular  election  whatever,  and  had  its  members  and  strength 
made  up  not.  by  the  wealth  and  power  and  strength  of  the 
people,  but  by  the  equality  of  the  States. 

When  you  add  to  that  this  change  which  gives  to  the 
Senate  a  voice  in  the  removal  from  office,  and  thus  gives 
them  the  first  hold  upon  the  question  of  the  maintenance  of 
official  power  in  the  country,  you  change  wholly  the  question 
of  the  Constitution;  and  instead  of  giving  the  Senate  only 
the  advisory  force  which  that  instrument  commits  to  it,  and 
only  under  the  conditions  that  the  office  being  to  be  filled 
they  have  nothing  to  say  but  who  shall  fill  it,  and  if  they  do 
not  concur,  still  leave  it  to  the  Executive  to  name  another, 
and  another,  and  another,  always  proceeding  from  his  orig- 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  419 

inal  and  principal  motion  in  the  matter,  you  change  it  to  the 
absolute  preliminary  power  of  this  body  to  say  to  the  Execu 
tive  of  the  United  States  that  every  administrative  office 
under  him  shall  remain  as  it  is;  and  these  officers  shall  be 
over  him  and  against  him,  provided  they  be  with  and  for 
you;  and  when  you  add  to  that  the  power  to  say  "until  we 
know  and  determine  who  the  successor  will  be,  until  we  get 
the  first  move  by  the  Executive's  concession  to  us  of  the 
successor,  we  hold  the  reins  of  power  that  the  office  shall  not 
be  vacated,"  you  do  indeed  break  down  at  once  the  balance 
between  the  executive  and  the  legislative  power  as  repre 
sented  in  this  body  of  the  latter  department  of  the  Govern 
ment,  and  you  break  down  the  Federal  election  of  President 
at  once,  and  commit  to  the  equality  of  States  the  partition 
and  distribution  of  the  executive  power  of  this  country. 

I  would  like  to  know  how  it  is  that  the  people  of  this 
country  are  to  be  made  to  adopt  this  principle  of  their  Con 
stitution  that  the  executive  power  attributed  to  the  Federal 
members,  made  up  of  Senators  and  Representatives  added 
together  for  each  State,  is  to  go  through  the  formality  of  the 
election  of  a  President  upon  that  principle  and  upon  that 
calculation,  and  then  find  that  the  executive  power  that  they 
supposed  was  involved  in  that  primary  choice  and  expression 
of  the  public  will  is  to  be  administered  and  controlled  by  a 
body  made  up  of  the  equality  of  States.  I  would  like  to 
know  on  what  plan  our  politics  are  to  be  carried  on;  how  can 
you  make  the  combinations,  how  the  forces,  how  the  inter 
ests,  how  the  efforts  that  are  to  throw  themselves  into  a 
popular  election  to  raise  a  presidential  control  of  executive 
power,  and  then  find  that  that  executive  power  is  all  admin 
istered  on  the  principle  of  equality  of  States.  I  would  like 
to  know  how  it  is  that  New  York  and  Pennsylvania,  and 
Ohio  and  Indiana,  and  Illinois  and  Missouri,  and  the  great 
and  growing  States,  are  to  carry  the  force  of  popular  will  into 
the  executive  chair  upon  the  federal  numbers  of  the  electoral 


420         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

colleges,  and  then  find  that  Rhode  Island  and  Delaware,  and 
the  distant  States  unpeopled,  are  to  control  the  whole  pos 
session  and  administration  of  executive  power.  I  would 
like  to  know  how  long  we  are  to  keep  up  the  form  of  electing 
a  President  with  the  will  of  the  people  behind  him,  and  then 
find  him  stripped  of  the  power  thus  committed  to  him  in 
the  partition  between  the  States,  without  regard  to  numbers 
or  to  popular  opinion.  There  is  the  grave  dislocation  of  the 
balances  of  the  Constitution;  there  is  the  absolute  destruc 
tion  of  the  power  of  the  people  over  the  presidential  author 
ity,  keeping  up  the  form  of  an  election,  but  depriving  it  of  all 
its  results.  And  I  would  like  to  know,  if  by  law  or  by  will 
this  body  thus  assumes  to  itself  this  derangement  of  the 
balances  of  the  Constitution  as  between  the  States  and 
popular  numbers,  how  long  New  England  can  maintain  in 
its  share  of  executive  power,  as  administered  here,  as  large 
a  proportion  as  belongs  to  New  York,  to  Pennsylvania,  to 
Ohio,  to  Indiana,  to  Illinois,  and  to  Missouri  together. 

I  must  think,  Mr.  Chief  Justice  and  Senators,  that  there 
has  not  been  sufficiently  considered  how  far  these  principles 
thus  debated  reach,  and  how  the  framers  of  the  Constitu 
tion,  when  they  came  to  debate  in  the  year  1789  in  Congress 
what  was  or  should  be  the  actual  and  practical  allocation 
of  this  authority,  understood  the  question  perfectly  in  its 
bearing  and  in  its  future  necessities. 

True,  indeed,  Mr.  Sherman  was  always  a  stern  and  per 
sistent  advocate  for  the  strength  of  the  Senate  as  against 
the  power  of  the  Executive.  It  was  there,  on  that  point, 
that  the  Senate  represented  the  equality  of  States;  and  he 
and  Mr.  Ellsworth,  holding  their  places  in  the  convention 
as  the  representatives  of  Connecticut,  a  State  then  a  small 
State,  between  the  powerful  State  of  Massachusetts  on  the 
one  side  and  New  York  on  the  other;  and  Judge  Paterson, 
of  New  Jersey,  the  representative  of  that  State,  a  small 
State,  between  the  great  State  of  New  York  on  the  one  side 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  421 

and  the  great  State  of  Pennsylvania  on  the  other,  were  the 
advocates,  undoubtedly,  of  this  distribution  of  power  to  the 
Senate;  and,  as  is  well  known  in  the  history  of  the  times,  a 
correspondence  of  some  importance  took  place  between  the 
elder  Mr.  Adams  and  Mr.  Sherman,  in  the  early  days  of  the 
working  of  the  Government,  as  to  whether  the  fears  of  Mr. 
Adams  that  the  Executive  would  prove  too  weak,  or  the 
purposes  of  Mr.  Sherman  that  the  Senate  should  be  strong 
enough,  were  or  were  not  most  in  accord  with  the  principles 
of  the  Government.  But  all  that  was  based  upon  the  idea 
that  the  concurrence  of  the  Senate,  under  the  terms  of  the 
Constitution,  in  appointment  was  the  only  detraction  from 
the  supremacy  and  independence  of  executive  authority. 

Now,  this  question  comes  up  in  this  form:  the  power  of 
removal  is,  and  always  has  been,  claimed  and  exercised  by 
the  Executive  in  this  Government,  separately  and  inde 
pendently  of  the  Senate.  Until  the  act  of  March  2,  1867, 
the  actual  power  of  removal  by  the  Senate  never  has  been 
claimed.  Some  constructions  upon  the  affirmative  exercise 
of  the  power  of  appointment  by  the  Executive  have  at 
different  times  been  suggested,  and  received  more  or  less 
support,  tending  to  the  conclusion  that  thus  the  Senate 
might  have  some  hold  of  the  question  of  removals;  and  now 
this  act,  which  we  are  to  consider  more  definitely  hereafter, 
does  not  assume  in  terms  to  give  the  Senate  a  participation 
in  the  distinct  and  separate  act  of  an  executive  nature,  the 
removal  from  office.  Indeed,  the  manner  in  which  the  Con 
gress  has  dealt  with  the  subject  is  quite  peculiar.  Unable, 
apparently,  to  find  adequate  support  for  the  pretention  that 
the  Senate  could  claim  a  share  in  the  distinct  act  of  removal 
or  vacating  of  office,  the  scheme  of  the  law  is  to  change  the 
tenure  of  office,  so  that  removability  as  a  separate  and 
independent  governmental  act,  by  whomever  to  be  exerted, 
is  obliterated  from  the  powers  of  this  government.  Look 
at  that,  now,  that  you  do  absolutely  strike  out  of  the  capacity 


422        SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

and  resources  of  this  government  the  power  of  removing  an 
officer  as  a  separate  executive  act;  I  mean  an  executive  act 
in  which  you  participate.  You  have  determined  by  law 
that  there  shall  be  no  vacation  of  an  office  possible,  except 
when  and  as  and  by  the  operation  of  completely  filling  it. 
And  so  far  have  you  carried  that  principle  that  you  do  not 
even  make  it  possible  to  vacate  it  by  the  concurrence  of  the 
Senate  and  the  President;  but  you  have  deliberately  and 
firmly  determined  that  the  office  shall  remain  full  as  an 
estate  and  possession  of  the  imcumbent,  from  which  he  can 
be  removed  under  no  stress  of  the  public  necessity  except 
by  the  fact  occurring  of  a  complete  appointment  for  per 
manent  tenure  of  a  successor  concurred  in  by  the  Senate 
and  made  operative  by  the  new  appointee  going  into  and 
qualifying  himself  in  the  office. 

This  seems  at  the  first  sight  a  very  extraordinary  provision 
for  all  the  exigencies  of  a  Government  like  ours,  with  its 
forty  thousand  officers,  whose  list  is  paraded  here  before 
you,  with  their  twenty-one  millions  of  emoluments,  to  show 
the  magnitude  of  the  great  prize  contended  for  between  the 
Presidency  and  the  Senate.  It  is  a  very  singular  provision, 
doubtless,  that  in  a  Government  which  includes  under  it 
forty  thousand  officers  there  should  be  no  governmental  pos 
sibility  of  stopping  a  man  in  or  removing  him  from  an  office 
except  by  the  deliberate  succession  of  a  permanent  successor 
approved  by  the  Senate  and  concurred  in  by  the  appointee 
himself  going  to  the  place  and  qualifying  and  assuming  its 
duties. 

I  speak  the  language  of  the  act,  and  while  the  Senate  is 
in  session  there  is  not  any  power  of  temporary  suspension  or 
arrest  of  fraud  or  violence,  of  danger  or  menace,  in  the  con 
duct  of  the  subsisting  officer.  When  you  are  in  recess  there 
is  a  power  of  suspension  given  to  the  Executive,  and  we  are 
better  off  in  that  respect  when  you  are  in  recess  than  when 
you  are  in  session,  for  we  can,  by  a  peremptory  and  definite 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  423 

and  appropriate  action,  arrest  misconduct  by  suspension. 
But  as  I  said  before,  I  repeat,  under  this  act  the  incumbents 
of  all  these  offices  have  a  permanent  estate  until  a  successor, 
with  your  consent  and  his  own,  is  inducted  into  the  office. 

I  do  not  propose  to  discuss  (as  quite  unnecessary  to  any 
decision  of  any  matter  to  be  passed  on  in  your  judgment)  at 
any  very  great  length  the  question  of  the  constitutionality  of 
this  law.  A  very  deliberate  expression  of  opinion,  after  a 
very  valuable  and  thorough  debate,  conducted  in  this  body, 
in  which  the  reasons  on  each  side  were  ably  maintained  by 
your  most  distinguished  members,  and  a  very  thorough 
consideration  in  the  House  of  Representatives,  where  able 
and  eminent  lawyers,  some  of  whom  appear  among  the  man 
agers  to-day,  gave  the  country  the  benefit  of  their  knowledge 
and  their  acuteness,  have  placed  this  matter  upon  a  legis 
lative  judgment  of  constitutionality.  But  I  think  all  will 
agree  that  a  legislative  judgment  of  constitutionality  does 
not  conclude  a  court,  and  that  when  legislative  judgments 
have  differed,  and  when  the  practice  of  the  government  for 
eighty  years  has  been  on  one  side  and  the  new  ideas  intro 
duced  are  confessedly  of  reversal  and  revolution  in  those 
ideas,  it  is  not  saying  too  much  to  say  that  after  the  expres 
sion  of  the  legislative  will,  and  after  the  expression  of  the 
opinion  of  the  legislature  implied  in  their  action,  there  yet 
would  remain  for  debate  among  jurists  and  lawyers,  among 
statesmen,  among  thoughtful  citizens,  and  certainly  properly 
within  the  province  of  the  Supreme  Court  of  the  United 
States,  the  question  whether  the  one  or  the  other  construc 
tion  of  the  Constitution,  so  vital  in  its  influence  upon  the 
government,  was  the  correct  and  the  safe  course  for  the 
conduct  of  the  government. 

Let  me  ask  your  attention  for  a  moment  upon  two  points, 
to  the  question  as  presenting  itself  to  the  minds  of  the  Sena 
tors,  as  to  whether  this  was  or  was  not  a  reversal  and  revolu 
tion  in  the  practice  and  theories  of  the  government,  and  also 


424         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

as  to  the  weight  of  a  legislative  opinion.  In  the  Senate,  the 
Senator  from  Oregon  [Mr.  Williams]  said: 

This  bill  undertakes  to  reverse  what  has  heretofore  been  the 
admitted  practice  of  the  government;  and  it  seemed  to  me  that 
it  was  due  to  the  exalted  office  of  the  President  of  the  United 
States,  the  Chief  Magistrate  of  the  nation,  that  he  should  exercise 
this  power;  that  he  should  be  left  to  choose  his  own  cabinet,  and 
that  he  should  be  held  responsible,  as  he  will  be,  to  the  country 
for  whatever  acts  that  cabinet  may  perform.  (Congressional 
Globe,  thirty-ninth  Congress,  second  session,  p.  384.) 

This  Senator  touches  the  very  marrow  of  the  matter,  that 
when  you  are  passing  this  bill,  which  in  the  whole  official 
service  of  this  country  reverses  the  practice,  you  should  at 
least  leave  the  exception  of  the  cabinet  officers  in.  That 
was  the  point;  leaving  them  entirely  in,  and  that,  with  that 
exception  in,  it  was  a  reversal  of  the  practice  of  the  Govern 
ment  to  all  the  rest,  and  the  cabinet  should  be  left  as  they 
were,  because,  as  he  said  wisely,  the  country  will  hold  the 
Executive  responsible  for  what  his  cabinet  does;  and  they 
will  so  hold  him  until  they  find  out  that  you  have  robbed 
the  Executive  of  all  responsibility  by  robbing  it  of  what  is 
the  pith  of  responsibility,  discretion. 

The  same  honorable  senator  proceeds,  in  another  point 
of  the  debate: 

I  know  there  is  room  for  disagreement  of  opinion;  but  it  seemed 
to  me  that  if  we  revolutionize  the  practice  of  the  government  in 
all  other  respects,  we  might  let  this  power  remain  in  the  hands  of 
the  President  of  the  United  States — 

That  is,  the  cabinet  officers'  appointment — 

that  we  ought  not  to  strip  him  of  this  power,  which  is  one  that  it 
seems  to  me  it  is  necessary  and  reasonable  that  he  should  exercise. 
(Ibid.,  p.  384.) 

The  honorable  senator  from  Michigan  [Mr.  Howard]  says : 
I  agree  with  him — 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  425 

Referring  to  the  senator  from  Indiana  [Mr.  Hendricks :] 

that  the  practical  precedents  of  the  government  thus  far  lead  to 
this  interpretation  of  the  Constitution,  that  it  is  competent  for  the 
President  during  the  recess  of  the  Senate  to  turn  out  of  office  a 
present  incumbent,  and  to  fill  his  place  by  commissioning  another. 
This  has  been,  I  admit,  the  practice  for  long  years  and  many 
generations;  but  it  is  to  be  observed,  at  the  same  time,  that  this 
claim  of  power  on  the  part  of  the  Executive  has  been  uniformly 
contested  by  some  of  the  best  minds  of  the  country.  (Ibid.,  p. 
407.) 

And  now,  as  to  the  weight  of  mere  legislative  construction, 
even  in  the  mind  of  a  legislator  himself,  as  compared  with 
other  Sources  of  authoritative  determination,  let  me  ask 
your  attention  to  some  other  very  pertinent  observations  of 
the  honorable  senator  from  Oregon  [Mr.  Williams] : 

Those  who  advocate  the  executive  power  of  removal  rely  alto 
gether  upon  the  legislative  construction  of  the  Constitution,  sus 
tained  by  the  practice  and  opinions  of  individual  men.  I  need  not 
argue  that  the  legislative  construction  of  the  Constitution  has  no 
binding  force.  It  is  to  be  treated  with  proper  respect;  but  few 
constructions  have  been  put  upon  the  Constitution  by  Congress  at 
one  time  that  have  not  been  modified  or  overruled  at  other  or 
subsequent  times,  so  that,  so  far  as  the  legislative  construction  of 
the  Constitution  upon  this  question  is  concerned,  it  is  entitled  to 
very  little  consideration.  (Ibid.,  p.  439.) 

The  point  in  the  debate  was  that  the  legislative  construc 
tion  of  1789,  as  worked  into  the  bones  of  the  Government  by 
the  indurating  process  of  practice  and  exercise,  was  a  con 
struction  of  powerful  influence  on  the  matter;  and  yet  the 
honorable  Senator  from  Oregon  justly  pushes  the  proposi 
tion  that  legislative  construction  per  se — that  I  may  not 
speak  disrespectfully,  I  speak  his  words — "that  legislative 
construction  is  entitled  to  very  little  consideration";  that 
it  has  "no  binding  force."  Shall  we  be  told  that  a  legis 
lative  construction  of  March  2,  1867,  and  a  practice  under 


426         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

it  for  one  year  that  has  brought  the  Congress  face  to  face 
with  the  Executive  and  introduced  the  sword  of  impeach 
ment  between  the  two  branches  upon  a  removal  from  office, 
raising  the  precise  question  that  an  attempt  by  the  President 
to  remove  a  Secretary  and  appoint  an  ad  interim  discharge 
of  its  duties  is  to  result  in  a  removal  by  the  Senate  of  the 
Executive  itself  and  the  appointment  of  one  of  its  own  mem 
bers  to  the  ad  interim  discharge  of  the  duties  of  the  Presi 
dency?  That  is  the  issue  made  by  a  recent  legislative  con 
struction. 

But  the  honorable  Senator  from  Oregon,  with  great  force 
and  wisdom,  as  it  seems  to  me,  proceeded  in  the  debate  to 
say  that  the  courts  of  law,  and,  above  all,  the  Supreme  Court 
of  the  United  States,  were  the  places  to  look  for  authoritative, 
for  permanent  determinations  of  these  constitutional  ques 
tions;  and  it  will  be  found  that  in  this  he  but  followed  the 
wisdom  shown  in  the  debate  in  1789  and  in  the  final  result 
of  it,  in  which  Mr.  Sherman  concurred  as  much  as  any 
member  of  that  Congress,  that  it  was  not  for  Congress  to 
name  or  assign  the  limits  upon  executive  power  by  enact 
ment  nor  to  appropriate  and  confer  executive  power  by 
endowment  through  an  act  of  Congress,  but  to  leave  it,  as 
Mr.  White,  of  North  Carolina,  said,  and  as  Mr.  Gerry,  of 
Massachusetts,  said,  and  as  Mr.  Sherman,  of  Connecticut, 
said,  for  the  Constitution  itself  to  operate  upon  the  foreign 
secretary  act,  and  let  the  action  be  made  under  it  by 
virtue  of  a  claim  of  right  under  the  Constitution,  and  who 
ever  was  aggrieved  let  him  raise  his  question  in  the  courts  of 
law.  And  upon  that  resolution  and  upon  that  situation  of 
the  thing  the  final  vote  was  taken,  and  the  matter  was  dis 
posed  of  in  that  Congress;  but  it  was  then  and  ever  since 
has  been  regarded  as  an  authentic  and  authoritative  deter 
mination  of  that  Congress  that  the  power  was  in  the  Presi 
dent,  and  it  has  been  so  insisted  upon,  so  acted  upon  ever 
since,  and  nobody  has  been  aggrieved,  and  nobody  has  raised 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  427 

the  question  in  the  courts  of  law.  That  is  the  force  and  the 
weight  of  the  resolution  of  that  first  Congress  and  of  the 
practice  of  the  Government  under  it. 

In  the  House  of  Representatives,  also,  it  was  a  conceded 
point  in  the  debate  upon  this  bill,  when  one  of  the  ablest 
lawyers  in  that  body,  as  I  understand  by  repute,  Mr.  Wil 
liams,  one  of  the  honorable  managers,  in  his  argument  for 
the  bill,  said: 

It  aims  at  the  reformation  of  a  giant  vice  in  the  administration 
of  this  Government  by  bringing  its  practice  back  from  a  rule  of 
its  infancy  and  inexperience.  (Ibid.,  p.  18.) 

He  thought  it  was  a  faulty  practice;  but  that  it  was  a 
practice,  and  that  from  its  infancy  to  the  day  of  the  passage 
of  the  bill  it  was  a  vice  inherent  in  the  system  and  exercising 
its  power  over  its  action,  he  did  not  doubt.  He  admits, 
subsequently,  in  the  same  debate  that  the  Congress  of  1789 
decided,  and  their  successors  for  three-quarters  of  a  century 
acquiesced  in  this  doctrine. 

I  will  not  weary  the  Senate  with  a  thorough  analysis  of 
the  debate  of  1789.  It  is,  I  believe,  decidedly  the  most 
important  debate  in  the  history  of  Congress.  It  is,  I  think, 
the  best  considered  debate  in  the  history  of  the  Government. 
I  think  it  included  among  its  debaters  as  many  of  the  able 
men  and  of  the  wise  men,  the  benefit  of  whose  public  service 
this  nation  has  ever  enjoyed,  as  any  debate  or  measure  that 
this  Government  has  ever  entertained  or  canvassed.  And 
it  was  a  debate  in  which  the  civil  prudence  and  forecast  of 
the  debaters  manifested  itself,  whichever  side  they  took  of 
the  question,  in  wonderful  wisdom,  for  the  premises  of  the 
Constitution  were  very  narrow.  Most  probably  the  ques 
tion  of  removal  from  office  as  a  distinct  subject  had  never 
occurred  to  the  minds  of  men  in  the  convention.  The 
tenure  of  office  was  not  to  be  made  permanent,  except  in 
the  case  of  the  justices  of  the  Supreme  Court,  and  the  perio- 


428         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

dicity  of  the  House  of  Representatives,  of  the  Senate,  and 
of  the  Executive  were  fixed.  Then  there  was  an  attribution 
of  the  whole  inferior  administrative  official  power  of  the 
Government  to  the  Executive  as  being  an  executive  act, 
with  the  single  qualification,  exceptional  in  itself,  that  the 
advice  and  consent  of  the  Senate  should  be  interposed  as  a 
negative  upon  presidential  nomination,  carrying  him  back 
to  a  substitute  if  they  should  not  agree  on  the  first  nominee. 
The  point  raised  was  exactly  this,  and  may  be  very  briefly 
stated:  those  who,  with  Mr.  Sherman,  maintained  that 
the  concurrence  in  removals  was  as  necessary  as  the  con 
currence  in  appointments,  put  themselves  on  a  proposition 
that  the  same  power  that  appointed  should  have  the  removal. 
That  was  a  little  begging  of  the  question — speaking  it  with 
all  respect — as  to  who  the  appointing  power  was  really, 
under  the  terms  and  in  the  intent  of  the  Constitution.  But, 
conceding  that  the  connection  of  the  Senate  with  the  matter 
really  made  them  a  part  of  the  appointing  power,  the  an 
swer  to  the  argument,  triumphant  as  it  seems  to  me,  as  it 
came  from  the  distinguished  speakers,  Mr.  Madison,  Mr. 
Boudinot,  Fisher  Ames,  and  other  supporters  of  the  doctrine 
that  finally  triumphed,  was  this:  primarily  the  whole  busi 
ness  of  official  subordinate  executive  action  is  a  part  of  the 
executive  function;  that  being  attributed  in  solido  to  the 
President,  we  look  to  exceptions  to  serve  the  turn  and  pre 
cise  measure  of  their  own  definition,  and  discard  that  falsest 
principle  of  reasoning  in  regard  to  laws  or  in  regard  to  con 
duct,  that  exception  is  to  breed  exception  or  amplification 
of  exception.  The  general  mass  is  to  lose  what  is  sub 
tracted  from  it  by  exception,  and  the  general  mass  is  to 
remain  with  its  whole  weight  not  thus  separately  and  defi 
nitely  reduced.  When,  therefore,  these  statesmen  said  you 
find  the  freedom  of  executive  action  and  its  solid  authority  re 
duced  by  an  exception  of  advice  and  consent  in  appointment, 
you  must  understand  that  that  is  the  limit  of  the  exception, 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  429 

and  the  executive  power  in  all  other  respects  stands  unim 
paired. 

What,  then,  is  the  test  of  the  consideration?  Whether 
removal  from  office  belongs  to  the  executive  power,  if  the 
Constitution  has  not  attributed  it  elsewhere ;  and  then  the 
question  was  of  statesmanship,  whether  this  debate  was 
important,  whether  it  was  vital,  whether  its  determination 
one  way  or  the  other  did  affect  seriously  the  character  of 
the  government  and  its  working;  and  I  think  all  agreed 
that  it  did;  and  all  so  agreeing,  and  all  coming  to  the  reso 
lution  that  I  have  stated,  what  weight,  what  significance  is 
there  in  the  fact  that  the  party  that  was  defeated  in  the  argu 
ment  submitted  to  the  conclusion  and  to  the  practice  of  the 
Government  under  it,  and  did  not  raise  a  voice  or  take  a 
vote  in  derogation  of  it  during  the  whole  course  of  the  Gov 
ernment? 

But  it  does  not  stand  upon  this.  After  forty-five  years' 
working  of  this  system,  between  the  years  1830  and  1835, 
the  great  party  exacerbations  between  the  democracy, 
under  the  lead  of  General  Jackson,  and  the  whigs,  under  the 
mastery  of  the  eminent  men  that  then  filled  these  halls,  the 
only  survivor  of  whom,  eminent  then  himself  and  eminent 
ever  since,  now  does  me  the  honor  to  listen  to  my  remarks 
[referring  to  Hon.  Thomas  Ewing,  of  Ohio],  then  under  that 
antagonism  there  was  renewed  the  great  debate;  and  what 
was  the  measure  to  which  the  contesting  party,  under 
the  influence  of  party  spirit,  brought  the  matter?  Mr. 
Webster  said  while  he  led  the  forces  in  a  great  array,  which, 
perhaps,  for  the  single  instance  combined  the  triumvirate 
of  himself,  Mr.  Calhoun,  and  Mr.  Clay,  that  the  contrary 
opinion  and  the  contrary  practice  was  settled.  He  said: 
"I  regard  it  as  a  settled  point;  settled  by  construction,  set 
tled  by  precedent,  settled  by  the  practice  of  the  Government, 
settled  by  legislation;"  and  he  did  not  seek  to  disturb  it. 
He  knew  the  force  of  those  forty-five  years,  the  whole  exist- 


430         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

ence  of  the  nation  under  its  Constitution  upon  a  question 
of  that  kind;  and  he  sought  only  to  interpose  a  moral  re 
straint  upon  the  President  in  requiring  him,  when  he  re 
moved  from  office,  to  assign  the  reasons  of  the  removal. 

General  Jackson  and  the  democratic  party  met  the  point 
promptly  with  firmness  and  with  thoroughness,  and  in  his 
protest  against  a  resolution  which  the  Senate  had  adopted 
in  1834,  I  think,  that  his  action  in  the  removal  of  Mr. 
Duane  (though  they  brought  it  down  finally,  I  believe,  to 
the  point  of  the  removal  of  the  deposits)  had  been  in  dero 
gation  of  the  Constitution  and  the  laws,  he  met  it  with  a  de 
fiance  in  his  protest  which  brought  up  two  great  topics  of 
debate;  one  the  independence  of  the  Executive  in  its  right 
to  judge  of  constitutional  questions,  and  the  other  the  great 
point  that  the  conferring  by  choice  of  the  people  upon  the 
President  of  their  representation  through  federal  numbers 
was  an  important  part  of  the  Constitution,  and  that  he  was 
not  a  man  of  his  own  will,  but  endued  and  re-enforced .  by 
the  will  of  the  people.  That  debate  was  carried  on  and 
that  debate  was  determined  by  the  Senate  passing  a  vote 
which  enacted  its  opinion  that  his  conduct  had  been  in  dero 
gation  of  the  Constitution  and  the  law;  and  on  this  very 
point  a  reference  was  made  to  the  common  master  of  them 
all,  the  people  of  the  United  States;  and  upon  a  re-election 
of  General  Jackson  and  upon  a  confirmation  of  opinion  from 
the  people  themselves,  they  in  their  primary  capacity 
acting  through  the  authentic  changes  of  their  Government, 
by  election,  brought  into  the  Senate,  upon  this  challenge,  a 
majority  that  expunged  the  resolution  censuring  the  action 
of  the  Executive.  You  talk  about  power  to  decide  constitu 
tional  questions  by  Congress,  power  to  decide  them  by  the 
Supreme  Court,  power  to  decide  them  by  the  Executive. 
I  show  you  the  superior  power  of  all  that  has  been  drawn 
into  the  great  debate,  of  public  opinion  and  the  determina 
tion  of  the  suffrage,  and  I  say  that  the  history  of  free  coun- 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  431 

tries,  the  history  of  popular  liberty,  the  history  of  the  power 
of  the  people,  not  by  passion  or  by  violence,  but  by  reason, 
by  discretion  and  peaceful,  silent,  patient  exercise  of  their 
power,  was  never  shown  more  distinctly  and  more  definitely 
than  on  this  very  matter,  whether  it  is  a  part  of  the  executive 
power  of  this  country  or  of  the  legislative  or  senatorial 
power,  that  removal  from  office  should  remain  in  the  Execu 
tive  or  be  distributed  among  the  Senators.  It  was  not  my 
party  that  was  pleased  or  that  was  triumphant,  but  of  the 
fact  of  what  the  people  thought  there  was  not  any  doubt, 
and  there  never  has  been  since  until  the  new  situation  has 
produced  new  interests  and  resulted  in  new  conclusions. 

Honorable  Senators  and  Representatives  will  remember 
how  in  the  debate  which  led  to  the  passage  of  the  civil 
tenure  act  it  was  represented  that  the  authority  of  the  first 
Congress  of  1789  ought  to  be  somewhat  scrutinized  because 
of  the  influence  upon  their  debates  and  conclusions  that 
the  great  character  of  the  Chief  Magistrate,  President  Wash 
ington,  might  have  produced  upon  their  minds.  Senators, 
why  can  we  not  look  at  the  present  as  we  look  at  the  past? 
Why  can  we  not  see  in  ourselves  what  we  so  easily  discern 
as  possible  with  others?  Why  can  we  not  appreciate  it  that 
perhaps  the  judgment  of  Senators  and  of  Representatives  now 
may  have  been  warped  or  misled  somewhat  by  their  opin 
ions  and  feelings  toward  the  Executive  as  it  is  now  filled? 
I  apprehend,  therefore,  that  this  matter  of  party  influence 
is  one  that  is  quite  as  wise  to  consider,  and  this  matter  of 
personal  power  in  authority  of  character  and  conduct  is 
quite  as  suitable  to  be  weighed  when  we  are  acting  as  when 
we  are  criticising  the  action  of  others. 

Two  passages  I  may  be  permitted  to  quote  from  this  great 
debate  as  carried  on  in  the  Congress  of  1789.  One  is  from 
Mr.  Madison,  at  page  480  of  the  first  volume  of  the  Annals 
of  Congress : 

It  is  evidently  the  intention  of  the  Constitution  that  the  first 


432         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

magistrate  should  be  responsible  for  the  executive  department. 
So  far,  therefore,  as  we  do  not  make  the  officers  who  are  to  aid 
him  in  the  duties  of  that  department  responsible  to  him,  he  is 
not  responsible  to  his  country.  Again,  is  there  no  danger  that  an 
officer,  when  he  is  appointed  by  the  concurrence  of  the  Senate,  and 
has  friends  in  that  body,  may  choose  rather  to  risk  his  establish 
ment  on  the  favor  of  that  branch  than  rest  it  upon  the  discharge 
of  his  duties  to  the  satisfaction  of  the  executive  branch,  which  is 
constitutionally  authorized  to  inspect  and  control  his  conduct? 
And  if  it  should  happen  that  the  officers  connect  themselves  with 
the  Senate,  they  may  mutually  support  each  other,  and  for  want  of 
efficacy  reduce  the  power  of  the  President  to  a  mere  vapor;  in 
which  case  his  responsibility  would  be  annihilated,  and  the  ex 
pectation  of  it  unjust.  The  high  executive  officers,  joined  in  cabal 
with  the  Senate,  would  lay  the  foundation  of  discord,  and  end  in 
an  assumption  of  the  executive  power,  only  to  be  removed  by  a 
revolution  in  the  Government.  I  believe  no  principle  is  more 
clearly  laid  down  in  the  Constitution  than  that  of  responsibility. 

Mr.  Boudinot  (page  487)  says : 

Neither  this  clause  [of  impeachment]  nor  any  other  goes  so  far 
as  to  say  it  shall  be  the  only  mode  of  removal:  therefore,  we  may 
proceed  to  inquire  what  the  other  is.  Let  us  examine  whether  it 
belongs  to  the  Senate  and  President.  Certainly,  sir,  there  is 
nothing  that  gives  the  Senate  this  right  in  express  terms;  but  they 
are  authorized,  in  express  words,  to  be  concerned  in  the  appoint 
ment.  And  does  this  necessarily  include  the  power  of  removal? 
If  the  President  complains  to  the  Senate  of  the  misconduct  of  an 
officer,  and  desires  their  advice  and  consent  to  the  removal,  what 
are  the  Senate  to  do?  Most  certainly  they  will  inquire  if  the  com 
plaint  is  well  founded.  To  do  this  they  must  call  the  officer 
before  them  to  answer.  Who,  then,  are  the  parties?  The  su 
preme  executive  officer  against  his  assistant;  and  the  Senate  are 
to  sit  as  judges  to  determine  whether  sufficient  cause  of  removal 
exists.  Does  not  this  set  the  Senate  over  the  head  of  the  President? 
But  suppose  they  shall  decide  in  favor  of  the  officer,  what  a  situa 
tion  is  the  President  then  in,  surrounded  by  officers  with  whom,  by 
his  situation,  he  is  compelled  to  act,  but  in  whom  he  can  have  no 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  433 

confidence,  reversing  the  privilege  given  him  by  the  Constitution, 
to  prevent  his  having  officers  imposed  upon  him  who  do  not  meet 
his  approbation? 

In  these  weighty  words  of  Mr.  Boudinot  and  Mr.  Madi 
son  is  found  the  marrow  of  the  whole  controversy.  There 
is  no  escaping  from  it.  If  this  body  pursue  the  method  now 
adopted,  they  must  be  responsible  to  the  country  for  the 
action  of  the  executive  department;  and  if  officers  are  to 
be  maintained,  as  these  wise  statesmen  say,  over  the  head 
of  the  President,  then  that  power  of  the  Constitution  which 
allowed  him  to  have  a  voice  in  their  selection  is  entirely 
gone;  for  I  need  not  say  that  if  it  is  to  be  dependent  upon  an 
instantaneous  selection,  and  thereafter  there  is  to  be  no 
space  of  repentance  or  no  change  of  purpose  on  the  part  of 
the  Executive  as  new  acts  shall  develop  themselves  and  new 
traits  of  character  shall  show  themselves  in  the  incumbent, 
it  is  idle  to  say  that  he  has  the  power  of  appointment. 
It  must  be  the  power  of  appointment  from  day  to  day; 
that  is  the  power  of  appointment  for  which  he  should  be 
held  responsible,  if  he  is  to  be  responsible  at  all.  I  wish  to 
ask  your  attention  to  the  opinions  expressed  by  some  of  the 
statesmen  who  took  part  in  this  determination  of  what  the 
effect,  and  the  important  effect,  of  this  conclusion  of  the 
Congress  of  1789  was.  None  of  them  overlooked  its  im 
portance  on  one  side  or  the  other;  and  I  beg  leave  to  read 
from  the  life  and  works  of  the  elder  Adams,  at  page  448  of 
the  first  volume,  the  interesting  comments  of  one,  himself  a 
distinguished  statesman,  in  whom  we  all  have  confidence, 
Mr.  Charles  Francis  Adams: 

The  question  most  earnestly  disputed  turned  upon  the  power 
vested  by  the  Constitution  in  the  President  to  remove  the  person 
at  the  head  of  that  bureau  at  his  pleasure.  One  party  maintained 
it  was  an  absolute  right.  The  other  insisted  that  it  was  subject 
to  the  same  restriction  of  a  ratification  by  the  Senate  which  is 
required  when  the  officer  is  appointed.  After  a  long  contest  in 

30 


434         SPEECHES  OP  WILLIAM  MAXWELL  EVARTS 

the  House  of  Representatives,  terminating  in  favor  of  the  unre 
stricted  construction,  the  bill  came  up  to  the  Senate  for  its  appro 
bation. 

This  case  was  peculiar  and  highly  important.  By  an  anomaly 
in  the  Constitution,  which,  upon  any  recognized  theory,  it  is  dif 
ficult  to  defend,  the  Senate,  which,  in  the  last  resort,  is  made  the 
judicial  tribunal  to  try  the  President  for  malversation  in  office,  is 
likewise  clothed  with  the  power  of  denying  him  the  agents  in 
whom  he  may  choose  most  to  confide  for  the  faithful  execution  of 
the  duties  of  his  station,  and  forcing  him  to  select  such  as  they  may 
prefer.  If,  in  addition  to  this,  the  power  of  displacing  such  as  he 
found  unworthy  of  trust  had  been  subjected  to  the  same  control, 
it  cannot  admit  of  a  doubt  that  the  Government  must,  in  course 
of  time,  have  become  an  oligarchy,  in  which  the  President  would 
sink  into  a  mere  instrument  of  any  faction  that  might  happen  to 
be  in  the  ascendant  in  the  Senate;  this,  too,  at  the  same  time  that 
he  would  be  subject  to  be  tried  by  them  for  offences  in  his  depart 
ment,  over  which  he  could  exercise  no  effective  restraint  whatever. 
In  such  case  the  alternative  is  inevitable,  either  that  he  would  have 
become  a  confederate  with  that  faction,  and  therefore  utterly 
beyond  the  reach  of  punishment  by  impeachment  at  their  hands  for 
offences  committed  with  their  privity,  if  not  at  their  dictation,  or 
else,  in  case  of  his  refusal,  that  he  would  have  been  powerless  to 
defend  himself  against  the  paralyzing  operation  of  their  ill-will. 
Such  a  state  of  subjection  in  the  executive  head  to  the  legislature 
is  subversive  of  all  ideas  of  a  balance  of  powers  drawn  from  the 
theory  of  the  British  constitution,  and  renders  probable  at  any 
moment  a  collision,  in  which  one  side  or  the  other,  and  it  is  most 
likely  to  be  the  legislature,  must  be  ultimately  annihilated. 

Yet,  however  true  these  views  may  be  in  the  abstract,  it  would 
scarcely  have  caused  surprise  if  their  soundness  had  not  been  ap 
preciated  in  the  Senate.  The  temptation  to  magnify  their  au 
thority  is  commonly  all-powerful  with  public  bodies  of  every  kind. 
In  any  other  stage  of  the  present  Government  than  the  first  it 
would  have  proved  quite  irresistible.  But  throughout  the  admin 
istration  of  General  Washington  there  is  visible  among  public 
men  a  degree  of  indifference  to  power  and  place  which  forms  one 
of  the  most  marked  features  of  that  time.  More  than  once  the 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  435 

highest  cabinet  and  foreign  appointments  went  begging  to  suitable 
candidates,  and  begged  in  vain.  To  this  fact  it  is  owing  that 
public  questions  of  such  moment  were  then  discussed  with  as  much 
of  personal  disinterestedness  as  can  probably  ever  be  expected  to 
enter  into  them  anywhere.  Yet  even  with  all  these  favoring  cir 
cumstances  it  soon  became  clear  that  the  republican  jealousy 
of  a  centralization  of  power  in  the  President  would  combine  with 
the  esprit  du  corps  to  rally  at  least  half  the  Senate  in  favor  of 
subjecting  removals  to  their  control.  In  such  a  case  the  respon 
sibility  of  deciding  the  point  devolved,  by  the  terms  of  the  Consti 
tution,  upon  Mr.  Adams,  as  Vice-President.  The  debate  was 
continued  from  the  15th  to  the  18th  of  July,  a  very  long  time  for 
that  day  in  an  assembly  comprising  only  twenty-two  members 
when  full,  but  seldom  more  than  twenty  in  attendance.  A  very 
brief  abstract,  the  only  one  that  has  yet  seen  the  light,  is  furnished 
in  the  third  volume  of  the  present  work.  Mr.  Adams  appears  to 
have  made  it  for  the  purpose  of  framing  his  own  judgment  in  the 
contingency  which  he  must  have  foreseen  as  likely  to  occur. 
The  final  vote  was  taken  on  the  18th.  Nine  Senators  voted  to 
subject  the  President's  power  of  removal  to  the  will  of  the  Senate: 
Messrs.  Few,  Grayson,  Gunn,  Johnson,  Izard,  Langdon,  Lee, 
Maclay,  and  Wingate.  On  the  other  hand,  nine  Senators  voted 
against  claiming  the  restriction:  Messrs.  Bassett,  Carroll,  Dalton, 
Elmer,  Henry,  Morris,  Paterson,  Read,  and  Strong.  The  result 
depended  upon  the  voice  of  the  Vice-President.  It  was  the  first 
time  that  he  had  been  summoned  to  such  a  duty.  It  was  the  only 
time  during  his  eight  years  of  service  in  that  place  that  he  felt  the 
case  to  be  of  such  importance  as  to  justify  his  assigning  reasons 
for  his  vote.  These  reasons  were  not  committed  to  paper,  however, 
and  can,  therefore,  never  be  known.  But  in  their  soundness  it  is 
certain  that  he  never  had  the  shadow  of  a  doubt.  His  decision 
settled  the  question  of  constitutional  power  in  favor  of  the  Presi 
dent,  and,  consequently,  established  the  practice  under  the 
Government,  which  has  continued  down  to  this  day.  Although 
there  have  been  occasional  exceptions  taken  to  it  in  argument, 
especially  at  moments  when  the  executive  power,  wielded  by  a 
strong  hand,  seemed  to  encroach  upon  the  limits  of  the  co-ordinate 
departments,  its  substantial  correctness  has  been,  on  the  whole, 


436         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

quite  generally  acquiesced  in.  And  all  have  agreed  that  no  single 
act  of  the  first  Congress  has  been  attended  with  more  important 
effects  upon  the  working  of  every  part  of  the  Government. 

It  is  thus  that  this  was  regarded  at  the  time  that  the  trans 
action  took  place.  I  beg  now  to  call  the  attention  of  the 
Senate  to  the  opinions  of  Fisher  Ames,  as  expressed  in 
letters  written  by  him  concurrently  with  the  action  of  the 
Congress  to  his  correspondent,  an  intelligent  lawyer  of  Bos 
ton,  Mr.  George  Richards  Minot.  -In  a  letter  to  Mr.  Minot, 
dated  the  31st  of  May,  1789,  to  be  found  in  the  first  volume 
of  the  life  of  Mr.  Ames,  page  51,  he  writes: 

You  dislike  the  responsibility  of  the  President  in  the  case  of 
the  minister  of  foreign  affairs.  I  would  have  the  President  re 
sponsible  for  his  appointments;  and  if  those  whom  he  puts  in  are 
unfit  they  may  be  impeached  on  misconduct,  or  he  may  remove 
them  when  he  finds  them  obnoxious.  It  would  be  easier  for  a 
minister  to  secure  a  faction  in  the  Senate  or  get  the  protection  of 
the  Senators  of  his  own  State  than  to  secure  the  protection  of  the 
President,  whose  character  would  suffer  by  it.  The  number  of 
the  Senators,  the  secrecy  of  their  doings,  would  shelter  them,  and  a 
corrupt  connection  between  those  who  appoint  to  office  and  who 
also  maintain  in  office  and  the  officers  themselves  would  be  created. 
The  meddling  of  the  Senate  in  appointments  is  one  of  the  least 
defensible  parts  of  the  Constitution.  I  would  not  extend  their 
power  any  further. 

And  again,  under  date  of  June  23,  1789,  page  55  of  the 
same  volume: 

The  debate  in  relation  to  the  President's  power  of  removal  from 
office  is  an  instance.  Four  days'  unceasing  speechifying  has  fur 
nished  you  with  the  merits  of  the  question.  The  transaction  of 
yesterday  may  need  some  elucidation.  In  the  Committee  of  the 
Whole  it  was  moved  to  strike  out  the  words,  "to  be  removable 
by  the  President,"  &c.  This  did  not  pass,  and  the  words  were 
retained.  The  bill  was  reported  to  the  House,  and  a  motion  made 
to  insert  in  the  second  clause,  "  whenever  an  officer  shall  be  removed 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  437 

by  the  President,  or  a  vacancy  shall  happen  in  any  other  way," 
to  the  intent  to  strike  out  the  first  words.  The  first  words,  "to  be 
removable,".  &c,  were  supposed  to  amount  to  a  legislative  disposal 
of  the  power  of  removal.  If  the  Constitution  had  vested  it  in  the 
President,  it  was  improper  to  use  such  words  as  would  imply  that 
the  power  was  to  be  exercised  by  him  in  virtue  of  this  act.  The 
mover  and  supporters  of  the  amendment  supposed  that  a  grant 
by  the  legislature  might  be  resumed,  and  that  as  the  Constitution 
had  already  given  it  to  the  President  it  was  putting  it  on  better 
ground,  and,  if  once  gained  by  the  declaration  of  both  houses, 
would  be  a  construction  of  the  Constitution,  and  not  liable  to 
future  encroachments.  Others,  who  contended  against  the  ad 
visory  part  of  the  Senate  in  removals,  supposed  the  first  ground 
the  most  tenable,  that  it  would  include  the  latter,  and  operate 
as  a  declaration  of  the  Constitution,  and  at  the  same  time  expressly 
dispose  of  the  power.  They  further  apprehended  that  any  change 
of  position  would  divide  the  victors  and  endanger  the  final  decision 
in  both  houses.  There  was  certainly  weight  in  this  last  opinion. 
Yet,  the  amendment  being  actually  proposed,  it  remained  only  to 
choose  between  the  two  clauses.  I  think  the  latter,  which  passed, 
and  which  seems  to  imply  the  legal  (rather  constitutional)  power 
of  the  President,  is  the  safest  doctrine.  This  prevailed,  and  the 
first  words  were  expunged.  This  has  produced  discontent,  and 
possibly  in  the  event  it  will  be  found  disagreement,  among  those 
who  voted  with  the  majority. 

This  is,  in  fact,  a  great  question,  and  I  feel  perfectly  satisfied 
with  the  President's  right  to  exercise  the  power,  either  by  the 
Constitution  or  the  authority  of  an  act.  The  arguments  in  favor 
of  the  former  fall  short  of  full  proof,  but  in  my  mind  they  greatly 
preponderate. 

You  will  say  that  I  have  expressed  my  sentiments  with  some 
moderation.  You  will  be  deceived,  for  my  whole  heart  has  been 
engaged  in  this  debate.  Indeed,  it  has  ached.  It  has  kept  me 
agitated,  and  in  no  small  degree  unhappy.  I  am  commonly  op 
posed  to  those  who  modestly  assume  the  rank  of  champions  of 
liberty  and  make  a  very  patriotic  noise  about  the  people.  It  is 
the  stale  artifice  which  has  duped  the  world  a  thousand  times,  and 
yet,  though  detected,  it  is  still  successful.  I  love  liberty  as  well  as 


438         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

anybody.  I  am  proud  of  it,  as  the  true  title  of  our  people  to  dis 
tinction  above  others;  but  so  are  others,  for  they  have  an  interest 
and  a  pride  in  the  same  thing.  But  I  would  guard  it  by  making 
the  laws  strong  enough  to  protect  it.  In  this  debate  a  stroke 
was  aimed  at  the  vitals  of  the  government,  perhaps  with  the  best 
intentions,  but  I  have  no  doubt  of  the  tendency  to  a  true  aristoc 
racy. 

It  will  thus  be  seen,  Senators,  that  the  statesmen  whom 
we  most  revere  regarded  this  as,  so  to  speak,  a  construction 
of  the  Constitution  as  important  as  the  framing  of  itself  had 
been.  And  now,  a  law  of  Congress  having  introduced  a 
revolution  in  the  doctrine  and  in  the  practice  of  the  Govern 
ment,  a  legislative  construction  binding  no  one  and  being 
entitled  to  little  respect  from  the  changeableness  of  legis 
lative  constructions,  in  the  language  of  the  honorable  Senator 
from  Oregon,  the  question  arises  whether  a  doubt,  whether 
an  act  in  reference  to  the  unconstitutionality  of  this  law 
on  the  part  of  the  executive  department  is  a  ground  of 
impeachment.  The  doctrine  of  unconstitutional  law  seems 
to  me — and  I  speak  with  great  respect — to  be  wholly  mis 
understood  by  the  honorable  managers  in  the  propositions 
which  they  present.  Nobody  can  ever  violate  an  uncon 
stitutional  law,  for  it  is  not  a  rule  binding  upon  him  or  any 
body  else.  His  conduct  in  violating  it  or  in  contravening 
it  may  be  at  variance  with  other  ethical  and  civil  conditions 
of  duty:  and  for  the  violation  of  those  ethical  and  civil 
conditions  he  may  be  responsible.  If  a  marshal  of  the 
United  States,  executing  an  unconstitutional  fugitive  slave 
bill,  enters  with  the  process  of  the  authority  of  law,  it  does 
not  follow  that  resistance  may  be  carried  to  the  extent  of 
shooting  the  marshal;  but  it  is  not  because  it  is  a  violation 
of  that  law;  for  if  it  is  unconstitutional  there  can  be  no 
violation  of  it.  It  is  because  civil  duty  does  not  permit 
civil  contests  to  be  raised  by  force  and  violence.  So,  too, 
if  a  subordinate  executive  officer,  who  has  nothing  but 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  439 

ministerial  duty  to  perform,  as  a  United  States  marshal 
in  the  service  of  process  under  an  unconstitutional  law, 
undertakes  to  deal  with  the  question  of  its  unconstitution 
ally,  the  ethical  and  civil  duty  on  his  part  is,  as  it  is  merely 
ministerial  on  his  part,  to  have  his  conscience  determine 
whether  he  will  execute  it  in  this  ministerial  capacity,  or 
whether  he  will  resign  his  office.  He  cannot,  under  proper 
ethical  rules,  determine  whether  the  execution  of  the  law 
shall  be  defeated  by  the  resistance  of  the  apparatus  provided 
for  its-  execution;  but  if  the  law  bears  upon  his  personal 
rights  or  official  emoluments,  then,  without  a  violation  of 
the  peace,  he  may  raise  the  question  of  the  law  and  resist 
it  consistently  with  all  civil  and  ethical  duties. 

Thus  we  see  at  once  that  we  are  brought  face  to  face 
with  the  fundamental  propositions,  and  I  ask  attention  to  a 
passage  from  the  Federalist,  at  page  549,  where  there  is  a 
very  vigorous  discussion  by  Mr.  Hamilton  of  the  question 
of  unconstitutional  laws;  and  to  the  case  of  Marbury  vs. 
Madison  in  1  Cranch.  The  subject  is  old,  but  it  is  there 
discussed  with  a  luminous  wisdom,  both  in  advance  of  the 
adoption  of  the  Constitution  and  of  its  construction  by  the 
Supreme  Court  of  the  United  States,  that  may  well  displace 
the  more  inconsiderate  and  loose  views  that  have  been 
presented  in  debate  here.  In  the  Federalist,  No.  78,  page 
541,  Mr.  Hamilton  says: 

Some  perplexity  respecting  the  rights  of  the  courts  to  pronounce 
legislative  acts  void,  because  contrary  to  the  Constitution,  has 
arisen  from  an  imagination  that  the  doctrine  would  imply  a  supe 
riority  of  the  judiciary  to  the  legislative  power.  It  is  urged  that 
the  authority  which  can  declare  the  acts  of  another  void  must 
necessarily  be  superior  to  the  one  whose  acts  may  be  declared 
void.  As  this  doctrine  is  of  great  importance  in  all  the  American 
constitutions,  a  brief  discussion  of  the  ground  on  which  it  rests 
cannot  be  unacceptable. 

There  is  no  position  which  depends  on  clearer  principles  than 


440         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

that  every  act  of  a  delegated  authority  contrary  to  the  tenor  of 
the  commission  under  which  it  is  exercised  is  void.  No  legislative 
act,  therefore,  contrary  to  the  Constitution,  can  be  valid.  To  deny 
this  would  be  to  affirm  that  the  deputy  is  greater  than  his  prin 
cipal;  that  the  servant  is  above  his  master;  that  the  representatives 
of  the  people  are  superior  to  the  people  themselves;  that  men 
acting  by  virtue  of  powers  may  do  not  only  what  their  powers  do 
not  authorize,  but  what  they  forbid. 

If  it  be  said  that  the  legislative  body  are  themselves  the  consti 
tutional  judges  of  their  own  powers,  and  that  the  construction  they 
put  upon  them  is  conclusive  upon  the  other  departments,  it  may 
be  answered  that  this  cannot  be  the  natural  presumption,  where 
it  is  not  to  be  collected  from  any  particular  provisions  in  the 
Constitution.  It  is  not  otherwise  to  be  supposed  that  the  Con 
stitution  could  intend  to  enable  the  representatives  of  the  people 
to  substitute  their  will  to  that  of  their  constituents.  It  is  far  more 
rational  to  suppose  that  the  courts  were  designed  to  be  an  inter 
mediate  body  between  the  people  and  the  legislature,  in  order, 
among  other  things,  to  keep  the  latter  within  the  limits  assigned 
to  their  authority.  The  interpretation  of  the  laws  is  the  proper 
and  peculiar  province  of  the  courts.  A  Constitution  is  in  fact, 
and  must  be  regarded  by  the  judges  as  a  fundamental  law.  It 
therefore  belongs  to  them  to  ascertain  its  meaning,  as  well  as  the 
meaning  of  any  particular  act  proceeding  from  the  legislative 
body.  If  there  should  happen  to  be  an  irreconcilable  variance 
between  the  two,  that  which  has  the  superior  obligation  and  valid 
ity  ought,  of  course,  to  be  preferred;  or,  in  other  words,  the  Con 
stitution  ought  to  be  preferred  to  the  statute,  the  intention  of 
the  people  to  the  intention  of  their  agents. 

Nor  does  this  conclusion,  by  any  means,  suppose  a  superiority 
of  the  judicial  to  the  legislative  power.  It  only  supposes  that  the 
power  of  the  people  is  superior  to  both,  and  that  where  the  will 
of  the  legislature,  declared  in  its  statutes,  stands  in  opposition  to 
that  of  the  people,  declared  in  the  Constitution,  the  judges  ought 
to  be  governed  by  the  latter  rather  than  the  former.  They  ought 
to  regulate  their  decisions  by  the  fundamental  laws  rather  than 
by  those  which  are  not  fundamental. 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  441 

Again : 

If,  then,  the  courts  of  justice  are  to  be  considered  as  the  bul 
warks  of  a  limited  Constitution  against  legislative  encroachments, 
this  consideration  will  afford  a  strong  argument  for  the  permanent 
tenure  of  judicial  offices,  since  nothing  will  contribute  so  much 
as  this  to  that  independent  spirit  in  the  judges,  which  must  be 
essential  to  the  faithful  performance  of  so  arduous  a  duty.  (Ibid., 
544.) 

In  the  case  of  Marbury  vs.  Madison  (1  Cranch,  pp.  175, 
178),  the  Supreme  Court  of  the  United  States,  speaking 
through  the  great  Chief  Justice  Marshall,  said: 

The  question  whether  an  act  repugnant  to  the  Constitution 
can  become  the  law  of  the  land  is  a  question  deeply  interesting  to 
the  United  States;  but  happily  not  of  an  intricacy  proportioned  to 
its  interests.  It  seems  only  necessary  to  recognize  certain  prin 
ciples,  supposed  to  have  been  long  and  well  established,  to  decide  it. 

That  the  people  have  an  original  right  to  establish  for  their 
future  government  such  principles  as,  in  their  opinion,  shall  most 
conduce  to  their  own  happiness,  is  the  basis  on  which  the  whole 
American  fabric  has  been  erected.  The  exercise  of  this  original 
right  is  a  very  great  exertion;  nor  can  it,  nor  ought  it,  to  be  fre 
quently  repeated.  The  principles,  therefore,  so  established  are 
deemed  fundamental,  and  as  the  authority  from  which  they  pro 
ceed  is  supreme  and  can  seldom  act,  they  are  designed  to  be  per 
manent. 

This  original  and  supreme  will  organizes  the  Government  and 
assigns  to  different  departments  their  respective  powers.  It 
may  either  stop  here  or  establish  certain  limits  not  to  be  trans 
cended  by  those  departments. 

The  Government  of  the  United  States  is  of  the  latter  description. 
The  powers  of  the  legislature  are  defined  and  limited,  and  that 
those  limits  may  not  be  mistaken  or  forgotten  the  Constitution  is 
written.  To  what  purpose  are  powers  limited,  and  to  what  pur 
pose  is  that  limitation  committed  to  writing,  if  these  limits  may 
at  any  time  be  passed  by  those  intended  to  be  restrained?  The 
distinction  between  a  government  with  limited  and  unlimited 


442         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

powers  is  abolished  if  those  limits  do  not  confine  the  persons  on 
whom  they  are  imposed,  and  if  acts  prohibited  and  acts  allowed  are 
of  equal  obligation.  It  is  a  proposition  too  plain  to  be  contested 
that  the  Constitution  controls  any  legislative  act  repugnant  to  it, 
or  that  the  legislature  may  alter  the  Constitution  by  an  ordinary 
act. 

Between  these  alternatives  there  is  no  middle  ground.  The 
Constitution  is  either  a  superior,  paramount  law,  unchangeable 
by  ordinary  means,  or  it  is  on  a  level  with  ordinary  legislative  acts, 
and,  like  other  acts,  is  alterable  when  the  legislature  shall  please 
to  alter  it. 

If  the  former  part  of  the  alternative  be  true,  then  a  legislative 
act  contrary  to  the  Constitution  is  not  law;  if  the  latter  part  be 
true,  then  written  constitutions  are  absurd  attempts  on  the  part 
of  the  people  to  limit  a  power  in  its  own  nature  illimitable. 

Certainly  all  those  who  have  framed  written  constitutions  con 
template  them  as  forming  the  fundamental  and  paramount  law  of 
the  nation,  and,  consequently,  the  theory  of  every  such  govern 
ment  must  be  that  an  act  of  the  legislature,  repugnant  to  the 
Constitution,  is  void. 

This  theory  is  essentially  attached  to  a  written  constitution, 
and  is,  consequently,  to  be  considered  by  the  Court  as  one  of  the 
fundamental  principles  of  our  society.  It  is  not,  therefore,  to  be 
lost  sight  of  in  the  further  consideration  of  this  subject. 

If  an  act  of  the  legislature  repugnant  to  the  Constitution  is 
void,  does  it,  notwithstanding  its  invalidity,  bind  the  Courts  and 
oblige  them  to  give  it  effect?  Or,  in  other  words,  though  it  be 
not  law  does  it  constitute  a  rule  as  operative  as  if  it  was  a  law? 
This  would  be  to  overthrow  in  fact  what  was  established  in  theory, 
and  would  seem,  at  first  view,  an  absurdity  too  gross  to  be  insisted 
on.  It  shall,  however,  receive  a  more  attentive  consideration. 

It  is  emphatically  the  province  and  duty  of  the  judicial  depart 
ment  to  say  what  the  law  is.  Those  who  apply  the  rule  to  particu 
lar  cases  must,  of  necessity,  expound  and  interpret  that  rule.  If 
two  laws  conflict  with  each  other,  the  Courts  must  decide  on  the 
operation  of  each. 

So,  if  a  law  be  in  opposition  to  the  Constitution,  if  both  the  law 
and  the  Constitution  apply  to  a  particular  case,  so  that  the  court 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  443 

must  either  decide  that  case  conformably  to  the  law,  disregarding 
the  Constitution,  or  conformably  to  the  Constitution,  disregarding 
the  law,  the  Court  must  determine  which  of  these  conflicting 
rules  governs  the  case.  This  is  of  the  very  essence  of  judicial  duty. 

If,  then,  the  Courts  are  to  regard  the  Constitution — and  the 
Constitution  is  superior  to  any  ordinary  act  of  the  legislature — 
the  Constitution,  and  not  such  ordinary  act,  must  govern  the  case 
to  which  they  both  apply. 

Those,  then,  who  controvert  the  principle  that  the  Constitution 
is  to  be  considered  in  Court  as  a  paramount  law,  are  reduced  to  the 
necessity  of  maintaining  that  Courts  must  close  their  eyes  on  the 
Constitution  and  see  only  the  law. 

This  doctrine  would  subvert  the  very  foundation  of  all  written 
constitutions.  It  would  declare  that  an  act  which,  according  to 
the  principles  and  theory  of  our.  Government,  is  entirely  void,  is 
yet,  in  practice,  completely  obligatory.  It  would  declare  that  if 
the  legislature  shall  do  what  is  expressly  forbidden,  such  act, 
notwithstanding  the  express  prohibition,  is  in  reality  effectual. 
It  would  be  giving  to  the  legislature  a  practical  and  real  omnipo 
tence  with  the  same  breath  which  professes  to  restrict  their  powers 
within  narrow  limits.  It  is  prescribing  limits,  and  declaring  that 
those  limits  may  be  passed  at  pleasure. 

That  it  thus  reduces  to  nothing  what  we  have  deemed  the  great 
est  improvement  on  political  institutions — a  written  constitution — 
would  of  itself  be  sufficient  in  America,  where  written  constitutions 
have  been  viewed  with  so  much  reverence  for  rejecting  the  construc 
tion. 

Undoubtedly  it  is  a  question  of  very  grave  consideration 
how  far  the  different  departments  of  the  Government,  legis 
lative,  judicial,  and  executive,  are  at  liberty  to  act  in 
reference  to  unconstitutional  laws.  The  judicial  duty,  per 
haps,  may  be  plain.  They  wait  for  a  case;  they  volunteer  no 
advice;  they  exercise  no  supervision.  But  as  between  the 
legislature  and  the  Executive,  even  when  the  Supreme 
Court  has  passed  upon  the  question,  it  is  one  of  the  gravest 
constitutional  points  for  public  men  to  determine  when  and 
how  the  legislature  may  raise  the  question  again  by  passing 


444         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

a  law  against  the  decision  of  the  Supreme  Court,  and  the 
Executive  may  raise  the  question  again  by  undertaking  an 
executive  duty  under  the  Constitution  against  the  decision 
of  the  Supreme  Court  and  against  the  determination  of 
Congress.  We  in  this  case  have  been  accused  of  insisting 
upon  extravagant  pretensions.  We  have  never  suggested 
anything  further  than  this,  for  the  case  only  requires  it, 
that  whatever  may  be  the  doubtful  or  debatable  region  of 
the  co-ordinate  authority  of  the  different  departments  of 
Government  to  judge  for  themselves  of  the  constitutionality 
or  unconstitutionality  of  laws,  to  raise  the  question  anew  in 
their  authentic  and  responsible  public  action,  when  the 
President  of  the  United  States,  in  common  with  the  humblest 
citizen,  finds  a  law  passed  over  his  right,  and  binding  upon  his 
action  in  the  matter  of  his  right,  then  all  reasons  of  duty  to 
self,  to  the  public,  to  the  Constitution,  to  the  laws,  require 
that  the  matter  should  be  put  in  the  train  of  judicial 
decision,  in  order  that  the  light  of  the  serene  reason  of  the 
Supreme  Court  may  be  shed  upon  it,  to  the  end  that  Con 
gress  even  may  reconsider  its  action  and  retract  its  encroach 
ment  upon  the  Constitution. 

But  Senators  will  not  have  forgotten  that  General  Jackson, 
in  his  celebrated  controversy  with  the  whig  party,  claimed 
that  no  department  of  the  Government  should  receive  its 
final  and  necessary  and  perpetual  exclusion  and  conclusion 
on  a  constitutional  question  from  the  judgment  even  of  the 
Supreme  Court,  and  that  under  the  obligations  of  each  one's 
oath,  yours  as  Senators,  yours  as  Representatives,  and  the 
President's  as  Chief  Executive,  each  must  act  in  a  new 
juncture  and  in  reference  to  a  new  matter  arising  to  raise 
again  the  question  of  constitutional  authority.  Now,  let 
me  read  in  a  form  which  I  have  ready  for  quotation  a  short 
passage  on  which  General  Jackson  in  his  protest  sets  this 
forth.  I  read  from  a  debate  on  the  fugitive  slave  law  as  con 
ducted  in  this  body  in  the  year  1852,  when  the  honorable 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  445 

Senator  from  Massachusetts  [Mr.  Sumner]  was  the  spokes 
man  and  champion  of  the  right  for  every  department  of  the 
Government  to  judge  the  constitutionality  of  law  and  of 
duty: 

But  whatever  may  be  the  influence  of  this  judgment — 

That  is,  the  judgment  of  the  Supreme  Court  of  the  United 
States  in  the  case  of  Prigg  vs.  Pennsylvania — 

But  whatever  may  be  the  influence  of  this  judgment  as  a  rule 
to  the  judiciary,  it  cannot  arrest  our  duty  as  legislators.  And  here 
I  adopt,  with  entire  assent,  the  language  of  President  Jackson,  in 
his  memorable  veto,  in  1832,  of  the  Bank  of  the  United  States. 
To  his  course  was  opposed  the  authority  of  the  Supreme  Court, 
and  this  is  his  reply: 

"If  the  opinion  of  the  Supreirie  Court  covers  the  whole  ground 
of  this  act  it  ought  not  to  control  the  co-ordinate  authorities  of 
this  Government.  The  Congress,  the  Executive,  and  the  Court 
must  each  for  itself  be  guided  by  its  own  opinion  of  the  Constitution. 
Each  public  officer  who  takes  an  oath  to  support  the  Constitution 
swears  that  he  will  support  it  as  he  understands  it,  and  not  as  it  is 
understood  by  others.  It  is  as  much  the  duty  of  the  House  of 
Representatives,  of  the  Senate,  and  of  the  President,  to  decide 
upon  the  constitutionality  of  any  bill  or  resolution  which  may  be 
presented  to  them  for  passage  or  approval  as  it  is  of  the  supreme 
judges  when  it  may  be  brought  before  them  for  judicial  decision. 
The  authority  of  the  Supreme  Court  must  not,  therefore,  be 
permitted  to  control  the  Congress  or  the  Executive  when  acting 
in  their  legislative  capacities,  but  to  have  only  such  influence  as 
the  force  of  their  reasoning  may  deserve." 

With  these  authoritative  words  of  Andrew  Jackson  I  dismiss 
this  topic.  (Appendix  to  Congressional  Globe,  Thirty-second  Con 
gress,  first  session,  p.  1108.) 

"  Times  change  and  we  change  with  them."  Nevertheless, 
principles  remain,  duties  remain,  the  powers  of  Government 
remain,  their  co-ordination  remains,  the  conscience  of  men 
remains,  and  everybody  that  has  taken  an  oath,  and  every- 


446         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

body  that  is  subject  to  the  Constitution  without  taking  an 
oath,  by  peaceful  means  has  a  right  to  revere  the  Constitu 
tion  in  derogation  of  unconstitutional  laws;  and  any  leg 
islative  will  or  any  judicial  authority  that  shall  deny  the 
supremacy  of  the  Constitution  in  its  power  to  protect  men 
who  thus  conscientiously,  thus  peacefully  raise  questions 
for  determination  in  a  conflict  between  the  Constitution  and 
the  law,  will  not  be  consistent  with  written  constitutions 
or  with  the  maintenance  of  the  liberties  of  this  people  as 
established  by  and  dependent  upon  the  preservation  of 
written  constitutions. 

Now  let  us  see  whether  upon  every  ethical,  constitutional, 
and  legal  rule  the  President  of  the  United  States  was  not  the 
person  upon  whom  this  civil-tenure  act  operated,  not  as  an 
executive  officer  to  carry  out  the  law,  but  as  one  of  the  co 
ordinate  departments  of  the  government  over  whom  in  that 
official  relation  the  authority  of  the  act  was  sought  to  be 
asserted.  The  language  is  general:  "Every  removal  from 
office  contrary  to  the  provisions  of  this  act  shall  be  a  high 
misdemeanor."  Who  could  remove  from  office  but  the 
President  of  the  United  States?  Who  had  the  authority? 
Who  could  be  governed  by  the  law  but  he?  And  it  was  in 
an  official  constitutional  duty,  not  a  personal  right,  not  a 
matter  of  personal  value  or  choice  or  interest  with  him. 

When,  therefore,  it  is  said  and  claimed  that  by  force  of  a 
legislative  enactment  the  President  of  the  United  States 
should  not  remove  from  office,  whether  the  act  of  Congress 
was  constitutional  or  not,  that  he  was  absolutely  prohibited 
from  removing  from  office,  and  if  he  did  remove  from  office, 
although  the  Constitution  allowed  him  to  remove,  yet  the 
Constitution  could  not  protect  him  for  removing,  but  that 
the  act  of  Congress,  seizing  upon  him,  could  draw  him  in 
here  by  impeachment  and  subject  him  to  judgment  for  vio 
lating  the  law,  though  maintaining  the  Constitution,  and 
that  the  Constitution  pronounced  sentence  of  condemnation 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  447 

and  infamy  upon  him  for  having  worshiped  its  authority 
and  sought  to  maintain  it,  and  that  the  authority  of  Congress 
has  that  power  and  extent  practically,  you  tear  asunder 
your  Constitution,  and  (if  on  these  grounds  you  dismiss 
this  President  from  this  Court  convicted  and  deposed)  you 
dismiss  him  the  victim  of  the  Congress  and  the  martyr  of 
the  Constitution  by  the  very  terms  of  your  judgment,  and 
you  throw  open  for  the  masters  of  us  all  in  the  great  debates 
of  an  intelligent,  instructed,  populous,  patriotic  nation  of 
freemen  the  division  of  sentiment  to  shake  this  country  to 
its  centre,  "the  omnipotence  of  Congress"  as  the  rallying 
cry  on  one  side,  and  "the  supremacy  of  the  Constitution" 
on  the  other. 

There  is  but  one  other  topic  that  I  need  to  insist  upon  here 
as  bearing  upon  that  part  of  my  argument  which  is  intended 
to  exhibit  to  the  clear  apprehension,  and  I  hope  adoption, 
of  this  court,  the  view  that  all  here  that  possesses  weight 
and  dignity,  that  really  presents  the  agitating  contest  which 
has  been  proceeding  between  the  departments  of  our  Govern 
ment,  is  political  and  not  criminal,  or  suitable  for  judicial 
cognizance;  and  that  is  what  seems  to  me  the  decisive  test 
in  your  judgments  and  in  your  consciences;  and  that  is 
the  attitude  that  every  one  of  you  already  in  your  public 
action  occupies  toward  this  subject. 

The  Constitution  of  the  United  States  never  intended 
so  to  coerce  and  constrain  the  consciences  and  the  duties 
of  men  as  to  bring  them  into  the  position  of  judges  between 
themselves  and  another  branch  of  government  in  regard  to 
matters  of  difference  between  themselves  and  that  other 
branch  of  Government  in  matters  which  concerned  wholly 
the  partition  of  authority  under  the  Constitution  between 
themselves  and  that  other  department  of  the  Government. 
The  eternal  principles  of  justice  are  implied  in  the  constitu 
tion  of  every  court,  and  there  are  no  more  immutable,  no 
more  inevitable  principles  than  these,  that  no  man  shall  be  a 


448         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

judge  in  his  own  cause,  and  that  no  man  shall  be  a  judge  in  a 
matter  in  which  he  has  already  given  judgment.  It  is 
abhorrent  to  the  natural  sense  of  justice  that  men  should 
judge  in  their  own  cause.  It  is  inconsistent  with  nature  it 
self  that  man  should  assume  an  oath  and  hope  to  perform 
it  by  being  impartial  in  his  judgment  when  he  has  already 
formed  it.  The  crimes  that  a  President  may  have  imputed 
to  him  that  may  bring  him  into  judgment  of  the  Senate  are 
crimes  against  the  Constitution  or  the  laws  involving  turpi 
tude  or  personal  delinquency. 

They  are  crimes  in  which  it  is  inadmissible  to  imagine 
that  the  Senate  should  be  committed  as  parties  at  all. 
They  are  crimes  which,  however  much  the  necessary  reflec 
tion  of  political  opinions  may  bias  the  personal  judgment  of 
this  or  that  member,  or  all  the  members  of  the  body — an 
infirmity  in  the  Court  which  cannot  be  avoided — yet  it  must 
be  possible  only  that  they  should  give  a  color  or  a  turn  and 
not  be  themselves  the  very  basis  and  substance  of  the  judg 
ment  to  be  rendered.  When,  therefore,  I  show  you  as  from 
the  records  of  the  Senate  that  you  yourselves  have  voted 
upon  this  law  whose  constitutionality  is  to  be  determined, 
and  that  the  question  of  guilt  or  innocence  arises  upon  con 
stitutionality  or  judgment  of  constitutionality,  when  you 
have  in  your  capacity  of  a  Senate  undertaken  after  the 
alleged  crime  committed,  as  an  act  suitable  in  your  judgment 
to  be  performed  by  you  in  your  relation  to  the  executive 
authority  and  your  duty  under  this  Government  to  pro 
nounce,  as  you  did  by  resolution,  that  the  removal  of  Mr. 
Stanton  and  the  appointment  of  General  Thomas  were  not 
authorized  by  the  Constitution  and  the  laws,  you  either 
did  or  did  not  regard  that  as  a  matter  of  political  action; 
and  if  you  regarded  it  as  a  matter  of  political  action,  then 
you  regarded  it  as  a  matter  that  could  not  possibly  be 
brought  before  you  in  your  judicial  capacity  for  you  to  de 
termine  upon  any  personal  consequences  to  the  Executive. 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  449 

How  was  it  a  matter  for  political  action  unless  it  was  a  mat 
ter  of  his  political  action  and  the  controversy  was  wholly 
of  a  political  nature?  If  you,  on  the  other  hand,  had  in  your 
minds  the  possibility  of  this  extraordinary  jurisdiction  being 
brought  into  play  by  a  complaint  to  be  moved  by  the  House 
of  Representatives  before  you,  what  an  extraordinary  spec 
tacle  do  you  present  to  yourselves  and  to  the  country!  No; 
the  controlling,  the  necessary  feeling  upon  which  you  acted 
must  have  been  that  "it  is  a  stage  and  a  step  in  governmental 
action  concerning  which  we  give  this  admonition  and  this 
suggestion  and  this  reproof." 

In  1834,  when  the  Senate  of  the  United  States  was  debat 
ing  the  question  of  the  resolution  condemnatory  of  General 
Jackson's  proceedings  in  reference  to  the  deposits  and  Mr. 
Duane,  the  question  was  raised,  "  Can  you,  will  you,  should 
you  pronounce  opinion  upon  a  matter  of  this  kind  when 
possibly  it  may  be  made  the  occasion,  if  your  views  are  right, 
of  an  impeachment  and  of  a  necessary  trial?"  The  answer 
of  the  great  and  trusted  statesman  of  the  Whig  party  of  that 
day  was,  "If  there  was  in  the  atmosphere  a  whisper,  if  there 
was  in  the  future  a  menace,  if  there  was  a  hope  or  a  fear, 
accordingly  as  we  may  think  or  feel,  that  impeachment  was 
to  come,  debate  must  be  silenced  and  the  resolution  sup 
pressed."  But  they  recognized  the  fact  that  it  was  mere 
political  action  that  was  being  resorted  to,  and  all  that  was 
or  was  to  be  possible;  but  the  complexion  of  the  House,  and 
the  sentiment  of  the  House,  and  the  attitude  of  the  Senate  as 
claiming  it  only  to  be  matter  of  political  discussion  and 
determination,  absolutely  rejected  the  notion  of  impeach 
ment,  as  within  the  range  of  discussion  and  held,  there 
fore,  the  debate,  a  mere  political  debate  and  the  conclusion 
a  political  conclusion. 

There  is  but  one  proposition  that  consists  with  the  truth 
of  the  case  and  with  the  situation  of  you,  Senators,  here,  and 
that  is  that  you  regarded  this  as  political  action  and  polit- 

31 


450         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

ical  decision,  not  by  possibility  a  matter  of  judgment  on  a 
subject  to  be  introduced  for  judicial  consideration.  It  is 
not  true  that  that  resolution  purports  to  cover  justifiable 
guilt;  it  only  expresses  an  opinion  that  the  state  of  the  law 
and  the  authority  of  the  Constitution  did  not  justify  the 
action  of  the  President,  but  it  does  not  impute  violence  or 
design  or  wickedness  of  purpose,  or  other  than  a  justifiable 
difference  of  opinion  to  resort  to  an  arbiter  between  you. 
But,  even  in  that  limited  view,  I  take  it  no  senator  can  think 
or  feel  that,  as  a  preliminary  part  of  the  judgment  of  a  court 
that  was  to  end  in  acquittal  or  conviction,  this  proceeding 
could  be  for  a  moment  warranted. 

The  two  gravest  articles  of  impeachment  against  the 
weightiest  trial  ever  introduced  into  this  court,  those  on 
which  as  large  a  vote  of  condemnation  was  gained  as  upon 
any  others,  were  the  two  articles  against  Judge  Chase,  one 
of  which  brought  him  in  question  for  coming  to  the  trial 
of  Fries,  in  Pennsylvania,  with  a  formed  and  pronounced 
opinion;  and  another,  the  third,  was  for  allowing  a  juryman 
to  enter  the  box  on  the  trial  of  Callender,  at  Richmond, 
who  stated  that  he  had  formed  an  opinion. 

I  would  like  to  see  a  court  of  impeachment  that  regards 
this  as  great  matter  that  a  judge  should  come  to  a  trial  and 
pronounce  a  condemnation  of  the  prisoner  before  the  coun 
sel  are  heard,  and  should  allow  a  juryman  to  enter  the  box 
who  excused  himself  from  having  a  free  mind  on  the  point 
discussed  as  he  had  formed  an  opinion,  and  yet  that  should 
tell  us  that  you,  having  formed  and  expressed  an  opinion, 
are  to  sit  here  judges  on  such  a  matter  as  this.  What  is 
there  but  an  answer  of  this  kind  necessary?  The  Constitu 
tion  never  brings  a  Senate  into  an  inculpation  and  a  condem 
nation  of  a  President  upon  matters  in  which  and  of  which 
the  two  departments  of  the  government  in  their  political 
capacities  have  formed  and  expressed  political  opinions. 
It  is  of  other  matter  and  of  other  fault,  in  which  there  are 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  451 

no  parties  and  no  discriminations  of  opinion.  It  is  of  offence, 
of  crime,  in  which  the  common  rules  held  by  all  of  duty,  of 
obligation,  of  excess,  or  of  sin,  are  not  determinable  upon 
political  opinions  formed  and  expressed  in  debate. 

But  the  other  principle  is  equally  contravened,  and  this 
aids  my  argument  that  it  is  political  and  not  personal  or 
criminal ;  it  is  that  you  are  to  pass  judgment  of  and  concern 
ing  the  question  of  the  partition  of  the  offices  of  this  govern 
ment  between  the  President  and  yourselves.  The  very 
matter  of  his  fault  is  that  he  claims  them;  the  very  matter 
of  his  condemnation  is  that  you  have  a  right  to  them;  and 
you,  aided  by  the  list  furnished  by  the  managers,  of  forty- 
one  thousand  in  number  and  $21,000,000  of  annual  emolu 
ment,  are  to  sit  here  as  judges  whether  his  mistaken  claim  and 
his  appeal  to  a  common  arbiter  in  a  matter  of  this  kind  is  to  be 
imputed  to  him  as  personal  guilt  and  followed  by  personal 
punishment. 

How  would  any  of  us  like  to  be  tried  before  a  judge  who, 
if  he  condemned  us,  would  have  our  houses,  and  if  he  ac 
quitted  us  we  should  have  his?  So  sensitive  is  the  natural 
sense  of  justice  on  this  point  that  the  whole  country  was  in 
a  blaze  by  a  provision  in  the  fugitive  slave  law  that  a  com 
missioner  should  have  but  five  dollars  if  he  set  the  slave 
free,  and  ten  dollars  if  he  remanded  him.  Have  honorable 
judges  of  this  court  forgotten  that  crisis  of  the  public  mind 
as  to  allowing  a  judge  to  have  an  interest  in  the  subject  of 
his  judgment?  Have  they  forgotten  that  the  honorable 
senator  from  Massachusetts  in  the  debate  upon  this  tenure- 
of-office  act  thought  that  political  bias  might  affect  a  court 
so  that  it  might  give  judgment  of  but  nominal  punishment 
for  an  infraction  of  the  act?  And  yet  you  are  full  of  politics. 
Why?  Because  the  question  is  political;  and  the  whole 
point  of  my  reference  is  as  an  absolute  demonstration  that 
the  Constitution  of  the  United  States  never  forces  honorable 
men  into  a  position  where  they  are  judges  in  their  own 


452         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

cause,  or  where  they  have  in  the  course  of  their  previous 
duties  expressed  a  judgment. 

I  have  omitted  from  this  consideration  the  fact  that  the 
great  office  itself,  if  by  your  judgment  it  shall  be  taken  from 
the  elected  head  of  this  republic,  is  to  be  put  in  commission 
with  a  member  of  your  own  body  chosen  to-day,  and  to 
morrow,  at  any  time,  by  yourselves,  and  that  you  are  taking 
the  crown  of  the  people's  magistracy  and  of  the  people's 
glory  to  decorate  the  honor  of  the  Senate.  An  officer  who, 
by  virtue  of  your  favor,  holds  the  place  of  President  pro 
tempore  of  your  body  adds  the  Presidency  to  its  duties  by 
the  way;  and  an  officer  changeable  from  day  to  day  by  you 
as  you  choose  to  have  a  new  President  pro  tempore,  who  by 
the  same  title  takes  from  day  to  day  the  discharge  of  the 
duties  of  President  of  the  United  States. 

When  the  prize  is  that,  and  when  the  circumstances  are  as 
I  have  stated,  Senators  must  decline  a  jurisdiction  upon  this 
demonstration  that  human  nature  and  human  virtue  can 
not  endure  that  men  should  be  judges  in  such  a  strife.  I 
will  agree  your  duty  keeps  you  here.  You  have  no  right 
to  resign  or  avoid  it;  but  it  is  a  duty  consistent  with  judicial 
fairness,  and  only  to  be  assumed  as  such;  and  the  subject 
itself,  thus  illustrated,  snatches  from  you  at  once,  as  wholly 
political,  the  topics  that  you  have  been  asked  to  examine. 

It  will  suit  my  convenience  and  sense  of  the  better  con 
sideration  of  the  separate  articles  of  impeachment  to  treat 
them  at  first  somewhat  generally,  and  then,  by  such  distri 
bution  as  seems  most  to  bring  us  finally  to  what,  if  it  shall 
not  before  that  time  have  disappeared,  appears  to  be  the 
gravest  matter  of  consideration. 

Let  me  ask  you  at  the  outset  to  see  how  little  as  matter  of 
evidence  this  case  is.  Certainly  this  President  of  the 
United  States  has  been  placed  under  as  trying  and  as  hot  a 
gaze  of  political  opposition  as  ever  a  man  was  or  could  be. 
Certainly  for  two  years  there  has  been  no  partial  construe- 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  453 

tion  of  his  conduct.  Certainly  for  two  years  he  has  been 
sifted  as  wheat  by  one  of  the  most  powerful  winnowing 
machines  that  I  have  ever  heard  of — the  House  of  Repre 
sentatives  of  the  United  States  of  America.  Certainly  the 
wealth  of  the  nation,  certainly  the  urgency  of  party,  cer 
tainly  the  zeal  of  political  ambition,  have  pressed  into  the 
service  of  imputation,  of  inculpation,  and  of  proof  all  that 
this  country  affords,  all  that  the  power  "to  send  for  persons 
and  papers  "  includes. 

They  have  none  of  the  risks  that  attend  ordinary  litigants 
of  bringing  their  witnesses  in  court  to  stand  the  test  of  open 
examination  and  cross-examination;  but  they  can  put  them 
under  the  constriction  of  an  oath  and  an  exploration  in 
advance  and  see  what  they  can  prove,  and  so  determine 
whom  they  will  bring  and  whom  they  will  reject.  They 
can  take  our  witness  from  the  stand  already  under  oath, 
and  even  of  so  great  and  high  a  character  as  the  Lieutenant 
General  of  your  armies,  and  out  of  court  ply  him  with  a  new 
oath  and  a  new  examination  to  see  whether  he  will  help  or 
hurt  them  by  being  cross-examined  in  court.  Every  arm 
and  every  heart  is  at  their  service,  stayed  by  no  sense  except 
of  public  duty  to  unnerve  their  power  or  control  its  exercise. 

And  yet  here  is  the  evidence.  The  people  of  this  country 
have  been  made  to  believe  that  all  sorts  of  personal  vice 
and  wickedness,  that  all  sorts  of  official  misconduct  and 
folly,  that  all  sorts  of  usurpation  and  oppression,  practiced, 
meditated,  plotted,  and  executed  on  the  part  of  this  Execu 
tive,  were  to  be  explored  and  exposed  by  the  prosecution 
and  certainly  set  down  in  the  record  of  this  court  for  the 
public  judgment.  Here  you  have  for  violence,  oppression, 
and  usurpation,  a  telegram  between  the  President  and  Gov 
ernor  Parsons,  long  public,  two  years  ago.  You  have  for 
his  desire  to  suppress  the  power  of  Congress  the  testimony 
of  Wood,  the  office-seeker,  that  when  the  President  said 
he  thought  the  points  were  important  he  said  that  he  thought 


454         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

they  were  minor,  and  that  he  was  willing  to  take  an  office 
from  the  President  and  yet  uphold  Congress;  that  the 
President  said  they  were  important,  and  he  thought  the 
patronage  of  the  government  should  be  in  support  of  those 
principles  which  he  maintained,  and  Wood,  the  office- 
seeker,  went  home  and  was  supposed  to  have  said  that  the 
President  had  used  some  very  violent  and  offensive  words 
on  the  subject,  and  he  was  brought  here  to  prove  them, 
and  he  disproved  them. 

Now,  weigh  the  testimony  upon  the  scale  that  a  nation 
looks  at  it,  upon  the  scale  that  foreign  nations  look  at  it, 
upon  the  scale  that  history  will  apply  to  it,  upon  the  scale 
that  posterity  will  in  retrospect  regard  it.  It  depends  a 
good  deal  upon  how  large  a  selection  a  few  specimens  of 
testimony  could  offer.  If  I  bring  a  handful  of  wheat  marked 
by  rust  and  weevil,  and  show  it  to  my  neighbor,  he  will  say, 
"Why,  what  a  wretched  crop  of  wheat  you  have  had";  but 
if  I  tell  him  "these  few  kernels  are  what  I  have  taken  from 
the  bins  of  my  whole  harvest,"  he  will  answer,  "What  a 
splendid  crop  of  wheat  you  have  had."  And  now  answer, 
answer  if  there  is  anything  wrong  in  this.  Mr.  Manager 
Wilson,  from  the  Judiciary  Committee,  that  had  examined 
for  more  than  a  year  this  subject,  made  a  report  to  the 
House.  It  is  the  wisest,  the  clearest,  and  also  one  of  the  most 
entertaining  views  of  the  whole  subject  of  impeachment 
in  the  past  and  in  the  present  that  I  have  ever  seen  or  can 
ever  expect  to  see,  and  what  is  the  result?  That  it  is  all 
political.  All  these  thunder-clouds  are  political,  and  it  is 
only  this  little  petty  pattering  of  rain  and  these  infractions 
of  statutes  that  are  personal  or  criminal.  And  "the  grand 
inquest  of  the  nation"  summoned  to  the  final  determination 
upon  the  whole  array,  on  the  9th  of  December,  1867,  votes 
107  to  57,  "no  impeachment."  If  these  honorable  managers 
had  limited  their  addresses  to  this  court  to  matters  that  in 
purpose,  in  character,  in  intent,  and  in  guilt,  occurred  after 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  455 

that  bill  of  impeachment  was  thrown  out  by  their  house, 
how  much  you  would  have  been  entertained  in  this  cause! 
I  have  not  heard  anything  that  had  not  occurred  before  that. 
The  speeches  were  made  eighteen  months  before.  The 
telegram  occurred  a  year  before.  Wood,  the  office-seeker, 
came  into  play  long  before.  What  is  there,  then,  not  cov 
ered  by  this  view? 

The  honorable  managers,  too,  do  not  draw  together 
always  about  these  articles.  There  seems  to  have  been 
an  original  production,  and  then  a  sort  of  afterbirth  that 
is  added  to  the  compilation,  and  as  I  understand  the  open 
ing  manager  [Mr.  Butler],  if  there  is  not  anything  in  the 
first  article  you  need  not  trouble  yourself  to  think  there  is 
anything  in  the  eleventh;  and  Mr.  Manager  Stevens  thinks 
that  if  there  is  not  anything  in  the  eleventh  you  had  better 
not  bother  yourself  in  looking  for  anything  in  the  first  ten, 
for  he  says  a  county-court  lawyer,  I  think,  could  get  rid  of 
them.  Let  me  give  you  his  exact  words : 

I  wish  this  to  be  particularly  noticed,  for  I  intend  to  offer  it  as 
an  amendment.  I  wish,  gentlemen,  to  examine  and  see  that  this 
charge  is  nowhere  contained  in  any  of  the  articles  reported,  and 
unless  it  be  inserted  there  can  be  no  trial  upon  it;  and  if  there  be 
the  shrewd  lawyers,  as  I  know  there  will  be,  and  cavilling  judges — 

He  did  not  state  that  he  felt  sure  of  that — 

and  without  this  article  they  do  not  acquit  him,  they  are  greener 
than  I  was  in  any  case  I  ever  undertook  before  the  court  of  quarter 
sessions. 

It  will  not  be  too  vain  in  us  to  think  that  we  come  up 
perhaps  to  this  estimate  on  our  side,  and  at  this  table,  of 
these  quarter-session  lawyers  that  would  be  adequate  to  dis 
pose  of  these  articles  of  impeachment;  and  they  are  right 
about  it,  quite  right  about  it.  If  you  cannot  get  in  what  is 
political  and  nothing  but  political,  you  cannot  get  hold  of 
anything  that  is  criminal  or  personal. 


456         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

Now,  with  that  general  estimate  of  the  limit  and  feeble 
ness  of  the  proofs  and  of  the  charges,  I  begin  with  the  con 
sideration  of  an  article  in  regard  to  which,  and  the  subject- 
matter  of  which,  I  am  disposed  to  concede  more  than  I 
imagine  can  be  claimed  fairly  in  regard  to  the  other  articles, 
that  some  proof  to  the  point  of  demonstration  has  been 
presented,  and  that  is  the  speeches.  I  think  that  it  has  been 
fairly  proved  here  that  the  speeches  charged  upon  the 
President,  in  substance  and  in  general,  were  made.  My 
first  difficulty  about  them  is  that  they  were  made  in  1866, 
and  related  to  a  Congress  that  has  passed  out  of  existence, 
and  were  a  subject  in  the  report  of  the  Judiciary  Committee 
to  the  House,  upon  which  the  House  voted  that  they  would 
not  impeach.  My  next  is  that  they  are  crimes  against 
rhetoric,  against  oratory,  against  taste,  and  perhaps  against 
logic,  but  that  the  Constitution  of  the  United  States  neither 
in  itself  nor  by  any  subsequent  amendments  has  provided 
for  the  government  of  the  people  of  this  country  in  these 
regards.  It  is  a  novelty  in  this  country  to  try  anybody 
for  making  a  speech. 

There  are  a  great  many  speeches  made  in  this  country, 
and  therefore  the  case  undoubtedly  would  have  arisen  in  the 
course  of  eighty  years  of  our  Government.  Indeed,  I  believe 
if  there  is  anything  that  marks  us,  and  to  the  approval,  at 
least  in  ability,  of  other  nations,  it  is  that  any  man  in  this 
country  not  only  has  a  right  to  make  a  speech,  but  can  make 
a  speech  and  a  good  one,  and  that  he  does  some  time  or 
other  in  his  life  actually  accomplish  it.  Why,  the  very 
lowest  epithet  for  speech-making  in  the  American  public 
adopted  by  the  newspapers  is  "able  and  eloquent."  I 
have  seen  applied  to  the  efforts  of  the  honorable  managers 
here  the  epithet,  in  advance  in  the  newspapers,  of  "tre 
mendous"  before  they  have  been  delivered  here,  of  "tremen 
dous  force";  and  I  saw  once  an  accurate  arithmetical 
statement  of  the  force  of  one  of  them  in  advance  that  it  con 
tained  thirty-three  thousand  words. 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  457 

We  are  speech-makers;  therefore  the  case  must  have  arisen 
for  a  question  of  propriety;  and  now  for  the  first  time  we 
begin  with  the  President,  and  accuse  him;  we  take  him 
before  no  ordinary  court,  but  organize  a  court  for  the  pur 
pose,  which  adjourns  the  moment  it  is  over  with  him,  fur 
nishes  no  precedent,  and  must  remove  him  from  office  and 
order  a  new  election.  That  is  a  great  deal  to  turn  on  a 
speech.  Only  think  of  it!  To  be  able  to  make  a  speech 
that  should  require  a  new  election  of  a  President  to  be  held! 
Well,  if  the  trial  is  to  take  place,  let  the  proclamation  issue 
to  this  speech-making  people,  "let  him  that  is  without  sin 
among  you  cast  the  first  stone' ' ;  and  see  how  the  nation  on 
tiptoe  waits;  but  who  will  answer  that  dainty  challenge  and 
who  assume  that  fastidious  duty?  We  see  in  advance  the 
necessary  requirements.  It  must  be  one  who  by  long  disci 
pline  has  learned  always  to  speak  within  bounds,  one  whose 
lips  would  stammer  at  an  imputation,  whose  cheek  would 
blush  at  a  reproach,  whose  ears  would  tingle  at  an  invective 
and  whose  eyes  would  close  at  an  indecorum.  It  must  be 
one  who  by  strict  continence  of  speech  and  by  control  over 
the  tongue,  that  unruly  member,  has  gained  with  all  his 
countrymen  the  praise  of  ruling  his  own  spirit,  which  is 
greater  than  one  who  taketh  a  city. 

And  now  the  challenge  is  answered;  and  it  seems  that  the 
honorable  manager  to  whom  this  duty  is  assigned  is  one  who 
would  be  recognized  at  once  in  the  judgment  of  all  as  first 
in  war,  first  in  peace  in  boldness  of  words,  first  in  the  hearts 
of  all  his  countrymen  that  love  this  wordy  intrepidity. 
Now,  the  champion  being  gained,  we  ask  for  the  rule,  and 
in  answer  to  an  interlocutory  inquiry  which  I  had  the 
honor  to  address  to  him,  he  said  the  rule  was  the  opinion  of 
the  Court  that  was  to  try  the  case. 

Now,  let  us  see  whether  we  can  get  any  guidance  as  to 
what  your  opinions  are  on  this  subject  of  freedom  of  speech; 
for  we  are  brought  down  to  that,  having  no  law  or  precedent 


458         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

besides.  I  find  that  the  matter  of  charge  against  the 
President  is  that  he  has  been  "unmindful  of  the  harmony 
and  courtesies  which  ought  to  exist  and  be  maintained  be 
tween  the  executive  and  legislative  branches  of  the  govern 
ment."  If  it  prevails  from  the  executive  toward  the  legis 
lative,  it  should  prevail  from  the  legislative  toward  the  execu 
tive,  upon  the  same  standard,  unless  I  am  to  be  met  with 
what  I  must  regard  as  a  most  novel  view  presented  by  Mr. 
Manager  Williams  in  his  argument  the  other  day,  that 
as  the  Constitution  of  the  United  States  prevents  your 
being  drawn  in  question  anywhere  for  what  you  say,  there 
fore  it  is  a  rule  that  does  not  work  both  ways.  Well, 
that  is  a  remarkable  view  of  personal  duty,  that  if  I  wore 
an  impenetrable  shirt  of  mail,  it  is  just  the  thing  for  me 
to  be  drawing  daggers  against  everybody  else  that  is  met  in 
the  street.  "Noblesse  oblige"  seems  to  be  a  law  which  the 
honorable  manager  does  not  think  applicable  to  the  houses 
of  Congress.  If  there  be  anything  in  that  suggestion,  how 
should  it  guard,  reduce,  and  regulate  your  use  of  freedom  of 
speech?  I  have  not  gone  outside  of  the  debates  that  relate 
to  this  civil-tenure  act;  my  time  has  been  sufficiently  occu 
pied  in  reading  all  that  was  said  in  both  houses  on  that 
subject;  but  I  find  now  a  well-recorded  precedent  not  merely 
in  the  observations  of  a  single  Senator,  but  in  a  direct  deter 
mination  of  the  Senate  itself  passing  upon  the  question  what 
certain  bounds  at  least  of  freedom  of  speech  as  between  the 
two  departments  of  the  Government  permitted.  The  hon 
orable  senator  from  Massachusetts,  in  the  course  of  the 
debate,  using  this  form  of  expression  in  regard  to  the  Presi 
dent  said,  and  on  the  subject  of  this  very  law: 

You  may  ask  protection,  against  whom?  I  answer  plainly, 
protection  against  the  President  of  the  United  States.  There, 
sir,  is  the  duty  of  the  hour.  Ponder  it  well,  and  do  not  forget  it. 
There  was  no  such  duty  on  our  fathers;  there  was  no  such  duty  on 
our  recent  predecessors  in  this  chamber,  because  there  was  no 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  459 

President  of  the  United  States  who  had  become  the  enemy  of  his 
country.     (Congressional  Globe,  2d  sess.  39th  Congress,  p.  525.) 

The  President  had  said  that  Congress  was  "hanging  on 
the  verge  of  the  government";  but  here  is  a  direct  charge 
that  the  President  of  the  United  States  is  an  enemy  of  the 
country.  Mr.  Sumner  being  called  to  order  for  this  expres 
sion,  the  honorable  Senator  from  Rhode  Island  [Mr.  An 
thony],  who  not  unfrequently  presides  with  so  much  ur 
banity  and  so  much  control  over  your  deliberations,  gave 
this  aid  to  us  as  to  what  the  common  law  of  this  tribunal 
was  on  the  subject  of  the  harmonies  and  courtesies  that 
should  prevail  between  the  legislative  and  the  executive 
departments .  He  said : 

It  is  the  impression  of  the  Chair  that  those  words  do  not  exceed 
the  usual  latitude  of  debate  which  has  been  permitted  here. 

Is  not  that  a  good  authority,  the  custom  of  the  tribunal 
established  by  the  presiding  officer?  Mr.  Sherman,  the 
honorable  Senator  from  Ohio,  said : 

I  think  the  words  objected  to  are  clearly  in  order.  I  have  heard 
similar  remarks  fifty  times  without  any  question  of  order  being 
raised. 

Communis  error  facit  jus.  That  is  the  principle  of  this 
view;  and  the  Senate  came  to  a  vote,  the  opposing  numbers 
of  which  remind  me  of  some  of  the  votes  on  evidence  that 
we  have  had  in  this  trial;  the  appeal  was  laid  on  the  table 
by  29  yeas  to  10  nays. 

We  shall  get  off  pretty  easy  from  a  tribunal  whose  "usual 
latitude  of  debate"  permits  the  legislative  branch  to  call 
the  Executive  an  enemy  of  his  country.  But  that  is  not  all. 
Proceeding  in  the  same  debate,  after  being  allowed  to  be  in 
order,  Mr.  Sumner  goes  on  with  a  speech,  the  eloquence  of 
which  I  cannot  be  permitted  to  compliment,  as  it  is  out  of 
place,  but  certainly  it  is  of  the  highest  order,  and  of  course 


460         SPEECHES  OP  WILLIAM  MAXWELL  EVARTS 

I  make  no  criticism  upon  it ;  but  he  begins  with  an  announce 
ment  of  a  very  good  principle: 

Meanwhile  I  shall  insist  always  upon  complete  freedom  of  de 
bate,  and  I  shall  exercise  it.  John  Milton,  in  his  glorious  aspira 
tions,  said  "Give  me  the  liberty  to  know,  to  utter,  and  to  argue 
freely,  above  all  liberties."  Thank  God,  now  that  slave-masters 
have  been  driven  from  this  chamber,  such  is  the  liberty  of  an 
American  Senator!  Of  course  there  can  be  no  citizen  of  a  republic 
too  high  for  exposure,  as  there  can  be  none  too  low  for  protection. 
The  exposure  of  the  powerful  and  the  protection  of  the  weak — 
these  are  not  only  invaluable  liberties  but  commanding  duties. 

Is  there  anything  in  the  President's  answer  that  is  nobler 
or  more  thoroughgoing  than  that?  And  if  the  President  is 
not  too  high,  but  that  it  should  be  not  only  an  invaluable 
liberty  but  a  commanding  duty  to  call  him  an  enemy  of 
the  country,  may  not  the  House  of  Representatives  be  ex 
posed  to  an  imputation  of  a  most  unintelligible  aspersion 
upon  them  that  they  "hang  on  the  verge  of  the  government "  ? 
Then  the  honorable  Senator  proceeds  with  a  style  of  obser 
vation  upon  which  I  shall  make  no  observation  whatever, 
and  I  feel  none,  but  Cicero,  in  In  Catalinam,  In  Verrem,  and 
in  Pro  Milone,  does  not  contain  more  eloquence  against  the 
objects  of  his  invective  than  this  speech  of  the  honorable 
Senator.  Here  are  his  words: 

At  last  the  country  is  opening  its  eyes  to  the  actual  condition 
of  things.  Already  it  sees  that  Andrew  Johnson  who  came  to 
supreme  power  by  a  bloody  accident,  has  become  the  successor 
of  Jefferson  Davis  in  the  spirit  by  which  he  is  governed  and  in  the 
mischief  he  is  inflicting  on  his  country.  It  sees  the  president 
of  the  rebellion  revived  in  the  President  of  the  United  States.  It 
sees  that  the  violence  which  took  the  life  of  his  illustrious  prede 
cessor  is  now  by  his  perverse  complicity  extending  throughout  the 
rebel  States,  making  all  who  love  the  Union  its  victims  and  filling 
the  land  with  tragedy.  It  sees  that  the  war  upon  the  faithful 
Unionists  is  still  continued  under  his  powerful  auspices,  without 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  461 

any  distinction  of  color,  so  that  all,  both  white  and  black,  are  sac 
rificed.  It  sees  that  he  is  the  minister  of  discord,  and  not  the 
minister  of  peace.  It  sees  that,  so  long  as  his  influence  prevails, 
there  is  small  chance  of  tranquillity,  security,  or  reconciliation; 
that  the  restoration  of  prosperity  in  the  rebel  States,  so  much 
longed  for,  must  be  arrested;  that  the  business  of  the  whole 
country  must  be  embarrassed,  and  that  those  conditions  on  which 
a  sound  currency  depends  must  be  postponed.  All  these  things 
the  country  now  sees.  But  indignation  assumes  the  form  of  judg 
ment  when  it  is  seen  also  that  this  incredible,  unparalleled,  and 
far-reaching  mischief,  second  only  to  the  rebellion  itself,  of  which 
it  is  a  continuation,  is  invigorated  and  extended  through  a  plain 
usurpation.  .  .  .  V': 

The  President  has  usurped  the  powers  of  Congress  on  a  colossal 
scale,  and  he  has  employed  these  usurped  powers  in  fomenting  the 
rebel  spirit  and  awakening  anew  the  dying  fires  of  the  rebellion. 
Though  the  head  of  the  executive,  he  has  rapaciously  seized  the 
powers  of  the  legislative,  and  made  himself  a  whole  Congress,  in 
defiance  of  a  cardinal  principle  of  republican  government  that  each 
branch  must  act  for  itself  without  assuming  the  powers  of  the 
others;  and  in  the  exercise  of  these  illegitimate  powers,  he  has 
become  a  terror  to  the  good  and  a  support  to  the  wicked.  This  is 
his  great  and  unpardonable  offence,  for  which  history  must  con 
demn  him  if  you  do  not.  He  is  a  usurper,  through  whom  infinite 
wrong  has  been  done  to  his  country.  He  is  a  usurper,  who, 
promising  to  be  a  Moses,  has  become  a  Pharaoh.  (Congressional 
Globe,  2d  sess.,  39th  Congress,  p.  541.) 

And  then  it  all  ends  in  a  wonderfully  sensible — if  the 
h  onorable  Senator  will  allow  me  to  say  so — and  pithy  obser 
vation  of  the  honorable  Senator  from  Wisconsin  [Mr.  Howe] : 

The  Senator  from  Massachusetts  has  advanced  the  idea  that  the 
President  has  become  an  enemy  to  his  country.  .  .  .  But  I 
suppose  that  not  only  to  be  the  condition  of  the  sentiment  in  this 
Senate  touching  the  present  President  of  the  United  States,  but 
I  suppose  we  never  had  a  President  who  was  not  in  communication 
with  a  Senate  divided  upon  just  that  question,  some  thinking 
that  he  was  an  enemy  of  the  country  and  others  thinking  that  he 


462         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

was  not;  and  I  respectfully  submit,  therefore,  that  the  Senator 
from  Massachusetts  will  be  competent  to  try  an  impeachment  if 
it  should  be  sent  here  against  the  President,  as  I  conceive  the  Sena 
tor  from  Maryland  would  be  competent  to  try  that  question  in 
spite  of  the  opinion  which  he  has  pronounced  here.  (Ibid.,  p.  545.) 

That  is  good  sense.  Senatorial  license  must,  if  it  goes  so 
wide  as  this,  sometimes  with  good-natured  Senators  be 
properly  described  as  a  little  Pickwickian. 

We  have  also  a  rule  provided  for  us  in  the  House  of 
Representatives,  and  I  have  selected  a  very  brief  one, 
because  it  is  one  that  the  honorable  managers  will  not 
question  at  all,  as  it  gives  their  standard  on  the  subject.  I 
find  that  there  this  rule  of  license  in  speech,  in  a  very  brief, 
pithy  form,  is  thus  conducted  between  two  of  the  most  dis 
tinguished  members  of  that  body,  who  can,  as  well  as  any 
others,  for  the  purpose  of  this  trial,  furnish  a  standard  of 
what  is  called  by  the  honorable  manager  "propriety  of 
speech."  I  read  from  page  263  of  the  Congressional  Globe 
for  the  fortieth  Congress,  first  session: 

Mr.  Bingham:  I  desire  to  say,  Mr.  Chairman,  that  it  does  not 
become  a  gentleman  who  recorded  his  vote  fifty  times  for  Jefferson 
Davis,  the  arch  traitor  in  this  rebellion,  as  his  candidate  for 
President  of  the  United  States,  to  undertake  to  damage  this  cause 
by  attempting  to  cast  an  imputation  either  upon  my  integrity  or 
my  honor.  I  repel  with  scorn  and  contempt  any  utterance  of  that 
sort  from  any  man,  whether  he  be  the  hero  of  Fort  Fisher  not  taken 
or  of  Fort  Fisher  taken.  [Laughter.] 

Now  for  the  reply: 

Mr.  Butler:  But  if  during  the  war  the  gentleman  from  Ohio 
did  as  much  as  I  did  in  that  direction  I  shall  be  glad  to  recognize 
that  much  done.  But  the  only  victim  of  the  gentleman's  prowess 
that  I  know  of  was  an  innocent  woman  hung  upon  the  scaffold, 
one  Mrs.  Surratt.  And  I  can  sustain  the  memory  of  Fort  Fisher 
if  he  and  his  present  associates  can  sustain  him  in  shedding  the 
blood  of  a  woman  tried  by  a  military  commission  and  convicted 
without  sufficient  evidence,  in,  my  judgment. 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  463 

To  which,  on  page  364,  Mr.  Bingham  responds  with  spirit: 

I  challenge  the  gentleman,  I  dare  him  here  or  anywhere  in  this 
tribunal,  or  in  any  tribunal,  to  assert  that  I  spoliated  or  mutilated 
any  book.  Why,  sir,  such  a  charge,  without  one  tittle  of  evidence, 
is  only  fit  to  come  from  a  man  who  lives  in  a  bottle  and  is  fed 
with  a  spoon.  [Laughter.] 

Now,  what  under  heaven  that  means  I  am  sure  I  do 
not  know,  but  it  is  within  the  common  law  of  courtesy 
in  the  judgment  of  the  House  of  Representatives.  We 
have  attempted  to  show  that  in  the  President's  addresses 
to  the  populace  there  was  something  of  irritation,  something 
in  the  subjects,  something  in  the  manner  of  the  crowd  that 
excused  and  explained,  if  it  did  not  justify,  the  style  of  his 
speech.  You  might  suppose  that  this  interchange  in  debate 
grew  out  of  some  subject  that  was  irritating,  that  was  itself 
savage  and  ferocious;  but  what  do  you  think  was  the  sub 
ject  these  honorable  gentlemen  were  debating  upon?  Why, 
it  was  charity.  The  question  of  charity  to  the  South 
was  the  whole  staple  of  the  debate;  "charity,"  which 
"suffereth  long  and  is  kind."  "Charity  envieth  not." 
"Charity  vaunteth  not  itself,  is  not  puffed  up."  Charity 
"doth  not  behave  itself  unseemly,  seeketh  not  her  own,  is 
not  easily  provoked,  thinketh  no  evil,  rejoiceth  not  in 
iniquity,  but  rejoiceth  in  the  truth,  beareth  all  things, 
belie veth  all  things,  hopeth  all  things,  endureth  all  things; 
charity  never  faileth."  But,  then,  the  Apostle  adds,  which 
I  fear  might  not  be  proved  here,  "tongues  may  fail." 

Now,  to  be  serious,  in  a  free  republic  who  will  tolerate  this 
fanfaronade  about  speech-making?  "Quis  tulerit  Gracchos 
de  seditione  querentes?" 

Who  will  tolerate  public  orators  prating  about  propriety 
of  speech?  Why  cannot  we  learn  that  our  estimate  of 
others  must  proceed  upon  general  views,  and  not  vary 
according  to  particular  passions  or  antipathies?  When 


464         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

Cromwell  in  his  career  through  Ireland,  in  the  name  of  the 
Parliament,  had  set  himself  down  before  the  town  of  Ross 
and  summoned  it  to  surrender,  exhausted  in  its  resistance, 
this  Papist  community  asked  to  surrender  only  upon  the 
conditions  of  freedom  of  conscience.  Cromwell  replied: 
"As  to  freedom  of  conscience,  I  meddle  with  no  man's 
conscience;  but  if  you  mean  by  that  liberty  to  celebrate 
the  mass,  I  would  have  you  understand  that  in  no  place 
where  the  power  of  the  Parliament  of  England  prevails  shall 
that  be  permitted."  So,  freedom  of  speech  the  honorable 
managers  in  their  imputation  do  not  complain  of;  but  if 
anybody  says  that  the  House  of  Representatives  hangs 
upon  the  verge  of  the  Government,  we  are  to  understand 
that  in  no  place  where  the  power  of  the  two  houses  of 
Congress  prevails  shall  that  degree  of  liberty  be  enjoyed, 
though  they  meddle  with  no  man's  propriety  or  freedom  of 
speech. 

Mr.  Jefferson  had  occasion  to  give  his  views  about  the 
infractions  upon  freedom  of  writing  that  the  sedition  law 
introduced  in  the  legislature  of  this  country,  and  at  the 
same  time  some  opinion  about  the  right  of  an  Executive  to 
have  an  opinion  about  the  constitutionality  of  a  law  and  to 
act  accordingly;  and  I  will  ask  your  attention  to  brief  ex 
tracts  from  his  views.  Mr.  Jefferson,  in  a  letter  to  Mr. 
President  Adams,  written  in  1804  (Jefferson's  Works,  vol.  3, 
p.  555),  says: 

I  discharged  every  person  under  the  punishment  or  prosecution 
under  the  sedition  law,  because  I  considered  and  now  consider 
that  law  to  be  a  nullity  as  absolute  and  as  palpable  as  if  Congress 
had  ordered  us  to  fall  down  and  worship  a  golden  image,  and  that 
it  was  as  much  my  duty  to  arrest  its  execution  in  every  stage  as  it 
would  have  been  to  have  rescued  from  the  fiery  furnace  those  who 
should  have  been  cast  into  it  for  refusing  to  worship  the  image. 
It  was  accordingly  done  in  every  instance,  without  asking  what 
the  offenders  had  done  or  against  whom  they  had  offended,  but 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  465 

whether  the  pains  they  were  suffering  were  inflicted  under  the 
pretended  sedition  law. 

And  in  another  letter  he  replies  to  some  observations 
against  this  freedom  of  the  Executive  about  the  constitu 
tionality  of  laws : 

You  seem  to  think  it  devolved  on  the  judges  to  decide  on  the 
validity  of  the  sedition  law;  but  nothing  in  the  Constitution  has 
given  them  a  right  to  decide  for  the  Executive  more  than  for  the 
Executive  to  decide  for  them.  Both  magistrates  are  equally 
independent  in  the  sphere  of  action  assigned  to  them.  The  judges 
believing  the  law  constitutional,  had  a  right  to  pass  a  sentence  of 
fine  and  imprisonment,  because  the  power  was  placed  in  their 
hands  by  the  Constitution;  but  the  Executive  believing  the  law 
to  be  unconstitutional,  were  bound  to  remit  the  execution  of  it, 
because  that  power  had  been  confided  to  them  by  the  Constitution. 
That  instrument  meant  that  its  co-ordinate  branches  should  be 
checks  on  each  other;  but  the  opinion  which  gives  the  judges  the 
right  to  decide  what  laws  are  constitutional  and  what  not,  not  only 
for  themselves  in  their  own  sphere  of  action,  but  for  the  legislature 
and  Executive  also  in  their  sphere,  would  render  the  judiciary  a 
despotic  branch. 

We  have  no  occasion  and  have  not  asserted  the  right  to 
resort  to  these  extreme  opinions  which  it  is  known  Jefferson 
entertained.  The  opinions  of  Madison,  more  temperate  but 
equally  thorough,  were  to  the  same  effect.  The  co-ordinate 
branches  of  the  Government  must  surrender  their  co-ordi 
nation  whenever  they  allow  a  past  rescript  to  be  a  final 
bar  to  renewing  or  presenting  constitutional  questions  for 
reconsideration  and  redetermination,  if  necessary,  even,  by 
the  Supreme  Court. 

But  we  have  here  some  instances  of  the  courtesy  prevail 
ing  in  the  different  branches  of  the  Government  in  the  very 
severe  expression  of  opinion  that  Mr.  Manager  Boutwell 
indulged  in  in  reference  to  the  heads  of  departments.  That 
is  an  executive  branch  of  the  Government;  and  here  you  are 

32 


466         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

sitting  in  these  halls,  and  the  language  used  was  as  much 
severer,  as  much  more  degrading  to  that  branch  of  the 
Government  than  anything  said  by  the  President  in  refer 
ence  to  Congress  as  can  be  imagined.  Exception  here  is 
taken  to  the  fact  that  the  President  called  congressmen,  it 
is  said,  in  a  telegram,  "a  set  of  individuals."  We  have 
heard  of  an  old  lady  not  well  instructed  in  long  words  who 
got  very  violent  at  being  called  an  individual,  because  she 
supposed  it  was  opprobrious.  But  here  we  have  an  impu 
tation  in  so  many  words  that  the  heads  of  departments  are 
"serfs  of  a  lord,  servants  of  a  master,  slaves  of  an  owner." 
And  yet  in  this  very  presence  sits  the  eminent  Chief  Justice 
of  the  United  States,  and  the  eminent  Senator  from  Maine 
(Mr.  Fessenden),  and  the  distinguished  Senator  from  Penn 
sylvania  (Mr.  Cameron),  all  of  whom  have  held  cabinet 
offices  by  this  tenure,  thus  decried  and  derided;  and  if  I  were 
to  name  the  Senators  who  aspire  in  the  future  to  hold  these 
degraded  positions,  I  am  afraid  I  should  not  leave  judges 
enough  here  to  determine  this  cause.  All  know  that 
this  is  all  extravagance.  "Est  modus  in  rebus;  sunt  certi 
denique  fines." 

There  is  some  measure  in  things.  There  is  some  limit  to 
the  bounds  of  debate  and  discussion  and  imputation.  I 
will  agree  that  nothing  could  be  more  unfortunate  than  the 
language  used  by  the  President  as  offending  the  serious  and 
religious  tastes  and  feelings  of  a  community,  in  the  observa 
tions  which  he  was  drawn  into  by  a  very  faulty  method  of 
reasoning,  in  a  speech  that  he  made  at  St.  Louis.  The 
difficulty  is,  undoubtedly,  that  the  President  is  not  familiar 
with  the  graces  taught  at  schools,  the  costly  ornaments 
and  studied  contrivances  of  speech,  but  that  he  speaks 
right  on;  and  when  an  obstacle  is  presented  in  his  path  he 
proceeds  right  over  it.  But  here  is  a  rhetorical  difficulty  for  a 
man  not  a  rhetorician.  An  illusive  metaphorical  suggestion 
has  been  made  that  he  is  a  Judas.  If  anybody — I  do  not 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  467 

care  how  practiced  he  is — undertakes  to  become  logical 
with  a  metaphor,  he  will  get  into  trouble  at  once;  and  that 
was  the  President's  difficulty.  He  looked  around  with  the 
eye  of  a  logician  and  said,  "  Judas's  fault  was  the  betrayal  of 
all  goodness.  Where  is  the  goodness  that  I  have  betrayed?  " 
And  the  moment,  therefore,  that  you  seek  to  be  logical  by 
introducing  the  name  of  the  Divinity  against  whom  he  had 
thus  sinned,  of  course  you  would  produce  that  offence  and 
shock  to  our  senses  which  otherwise  would  not  have  been 
occasioned. 

I  am  not  entirely  sure  that  when  you  make  allowances 
for  the  difference  between  an  ex  tempore  speech  of  the  Presi 
dent  to  a  mob,  and  a  written,  prepared,  and  printed  speech 
to  this  Court,  by  an  honorable  manager,  but  that  there  may 
be  some  little  trace  of  the  same  impropriety  in  that  figure  of 
argument  which  presented  Mr.  Carpenter  to  your  observa 
tion  as  an  inspired  painter,  whose  pencil  was  guided  by  the 
hand  of  Providence  to  the  apportionment  of  Mr.  Stanton 
to  perpetual  bliss,  and  of  Governor  Seward  to  eternal  pains. 
But  all  that  is  matter  of  taste,  matter  of  feeling,  matter  of 
discretion,  matter  of  judgment. 

The  serious  views  impressed  upon  you  with  so  much  force 
by  the  counsel  for  the  President  who  opened  this  cause  for 
us,  and  supported  by  the  quotations  from  Mr.  Madison, 
present  this  whole  subject  in  its  proper  aspect  to  an  American 
audience.  I  think  that  if  our  newspapers  would  find  some 
more  discriminating  scale  of  comment  on  speeches  than  to 
make  the  lowest  scale  "able  and  eloquent,"  we  should 
have  a  better  state  of  things  in  public  addresses. 

Our  position  in  regard  to  the  speeches  is,  that  the  circum 
stances  produced  in  truth  should  be  considered,  that  words 
put  into  the  speaker's  mouth  from  the  calls  of  the  crowd, 
ideas  suddenly  raised  by  their  unfriendly  and  impolite  sug 
gestions,  are  to  have  their  weight,  and  that  without  apolo 
gizing,  for  no  man  is  bound  to  apologize  before  the  law  or 


468         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

before  the  Court  for  the  exercise  of  freedom  of  speech,  it 
may  be  freely  admitted  that  it  would  be  very  well  if  all  men 
were  accomplished  rhetoricians,  finished  logicians,  and  had  a 
bridle  on  their  tongues. 

And  now,  without  pausing  at  all  upon  the  eleventh  article, 
which  I  leave  to  the  observations  of  the  honorable  managers 
among  themselves  to  dispose  of,  I  will  take  up  the  Emory 
article.  The  Emory  article  is  an  offence  which  began  and 
ended  on  the  22d  of  February,  and  is  comprised  within  a 
half  hour's  conversation  between  the  President  and  a  general 
of  our  armies. 

I  dare  say  that  in  the  rapid  and  heated  course  of  this  im 
peachment  through  the  House  of  Representatives  it  may 
have  been  supposed  by  rumor,  uncertain  and  amplified, 
that  there  had  occurred  some  kind  of  military  purpose  or 
intention  on  the  part  of  the  President  that  looked  to  the 
use  of  force;  but  under  these  proofs  what  can  we  say  of  it 
but  that  the  President  received  an  intimation  from  Secre 
tary  Welles  that  all  the  officers  were  being  called  away  from 
what  doubtless  is  their  principal  occupation  in  time  of  peace, 
attendance  upon  levees,  were  summoned,  as  they  were  from 
the  halls  of  revelry  at  Brussels  to  the  battle  of  Waterloo, 
and  it  was  natural  to  inquire  when  and  where  this  battle 
was  to  take  place;  and  the  President,  treating  it  with  very 
great  indifference,  said  he  did  not  know  anything  about 
General  Emory,  and  did  not  seem  to  care  anything  about  it ; 
but  finally,  when  Secretary  Welles  said,  "You  had  better 
look  into  it,"  he  did  look  into  it,  and  there  was  a  conver 
sation  which  ended  in  a  discussion  of  constitutional  law 
between  the  President  and  the  general,  in  which  the  general, 
re-enforced  by  Mr.  Reverdy  Johnson,  a  lawyer,  and  Mr. 
Robert  J.  Walker,  a  lawyer,  actually  put  down  the 
President  entirely!  Now,  if  he  ought  to  be  removed  from 
office  for  that,  and  a  new  election  ordered  for  that, 
you  will  so  determine  in  your  judgment;  and  if  any  other 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  469 

President  can  go  through  four  years  without  doing  some 
thing  worse  than  that,  we  shall  have  to  be  more  careful  in 
the  preliminary  examinations  in  our  nominating  conventions. 
I  understand  this  article  to  be  hardly  insisted  upon. 

Then  come  the  conspiracy  articles.  The  conspiracy  con 
sists  in  this:  It  was  all  commenced  and  completed  in  writing; 
the  documents  were  public;  they  were  immediately  promul 
gated,  and  that  is  the  conspiracy,  if  it  be  one.  It  is  quite 
true  that  the  honorable  Manager,  who  conducted  with  so 
much  force  and  skill  the  examinations  of  the  witnesses,  did 
succeed  in  proving  that  besides  the  written  orders  handed 
by  the  President  of  the  United  States  to  General  Thomas, 
there  were  a  few  words  of  attendant  conversation,  and  those 
words  were,  "I  wish  to  uphold  the  Constitution  and  the 
laws,"  and  an  assent  of  General  Thomas  to  the  propriety 
of  that  course.  But  by  the  power  of  our  profession  the 
learned  Manager  made  it  evident,  by  the  course  of  his 
examination,  in  which  he  asked  the  witness  if  he  had  ever 
heard  those  words  used  before  when  a  commission  was  de 
livered  to  him  and  received  for  reply  that  he  had  not,  and 
that  it  was  not  routine,  that  they  carried  infinite  gravity  of 
suspicion ! 

What  is  there  that  we  cannot  believe  in  the  power  of  coun 
sel  to  affix  upon  innocent  and  apparently  laudable  expressions 
these  infinite  consequences  of  evil  surmise,  when  we  remem 
ber  how,  in  a  very  celebrated  trial,  "chops  and  tomato 
sauce"  were  to  go  through  the  service  of  getting  a  verdict 
from  a  jury  on  a  question  of  a  breach  of  promise  of 
marriage?  Now,  "chops  and  tomato  sauce"  do  not  im 
port  a  promise  of  marriage;  there  is  not  the  least  savor 
of  courtship  nor  the  least  flavor  of  flirtation,  even,  in 
them;  but  it  is  in  "the  hidden  meaning."  And  so  "the 
Constitution  and  the  laws,"  by  these  two  men,  at  mid 
day,  and  in  writing,  entering  into  a  conspiracy,  mean,  we 
are  told,  bloodshed,  civil  commotion,  and  war!  Well,  I 


470         SPEECHES  OP  WILLIAM  MAXWELL  EVARTS 

cannot  argue  against  it.  Cardinal  Wolsey  said  that  in 
political  times  you  could  get  a  jury  that  would  bring  in  a 
verdict  that  Abel  killed  Cain;  and  it  may  be  that  an  American 
Senate  will  find  that  in  this  allusion  to  the  Constitution  and 
the  laws  is  found  sufficient  evidence  to  breed  from  it  a  pur 
pose  of  commotion  and  civil  war. 

But  the  conspiracy  articles  have  but  a  trivial  foundation 
to  rest  upon.  Here  we  have  a  statute  passed  at  the  eve  of 
the  insurrection  intended  to  guard  the  possession  of  the 
offices  of  the  United  States  from  the  intrusion  of  intimida 
tion,  threats,  and  force,  to  disable  the  public  service.  It  is, 
in  fact,  a  reproduction  of  the  first  section  of  the  sedition  act 
of  1798  somewhat  amplified  and  extended.  It  is  a  law 
wholly  improper  in  time  of  peace,  for,  in  the  extravagance 
of  its  comprehension,  it  may  include  much  more  than  should 
be  made  criminal,  except  in  times  of  public  danger.  But 
the  idea  that  a  law  intended  to  prevent  rebels  at  the  south, 
or  rebel  sympathizers,  as  they  were  called,  at  the  north, 
from  intimidating  officers  in  the  discharge  of  their  public 
duty,  should  be  wrested  to  an  indictment  and  trial  of  a 
President  of  the  United  States  and  an  officer  of  the  army 
under  a  written  arrangement  of  orders  to  take  possession 
of  and  administer  one  of  the  departments  of  the  Government 
according  to  law,  is  wresting  a  statute  wholly  from  its 
application.  We  are  all  familiar  with  the  illustration  that 
Blackstone  gives  us  of  the  impropriety  of  following  the  lit 
eral  words  of  a  statute  as  against  a  necessary  implication, 
when  he  says  that  a  statute  against  letting  blood  in  the 
street  could  not  properly  support  an  indictment  against  a 
surgeon  for  tapping  the  vein  of  an  apoplectic  patient  who 
happened  to  have  fallen  on  the  sidewalk.  And  there  is  no 
greater  perversity  or  contrariety  in  this  effort  to  make  this 
statute  applicable  to  orderly  and  regular  proceedings  between 
recognized  officers  of  the  United  States  in  the  disposition  of 
an  office  than  there  would  be  in  punishing  the  surgeon  for 
relieving  the  apoplectic  patient. 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  471 

I  did  not  fully  understand,  though  I  carefully  attended 
to,  the  point  of  the  argument  of  the  learned  Manager  [Mr. 
Boutwell],  who,  with  great  precision  and  detail,  brought 
into  view  the  common  law  of  Maryland  as  adopted 
by  Congress  for  the  Government  in  the  domestic  and  ordi 
nary  affairs  of  life  of  the  people  in  this  District;  but  if  I  did 
rightly  understand  it,  it  was  that,  though  there  was  nothing 
in  the  penal  code  of  the  District,  and  although  the  act  of 
1801  did  not  attempt  to  make  a  penal  code  for  the  District, 
yet  somehow  or  other  it  became  a  misdemeanor  for  the 
President  of  the  United  States,  in  his  official  functions,  to  do 
what  he  did  do  about  this  office,  because  it  was  against  the 
common  law  of  Maryland  as  applied  in  this  District. 

I  take  it  that  I  need  not  proceed  on  this  subject  any 
further.  The  common  law  has  a  principle  that  when  the 
common  law  stigmatizes  a  malum  in  se  and  a  felony  it  may 
be  a  misdemeanor  at  common  law  to  attempt  it  and  to  use 
the  means.  But  the  idea  that  when  a  statute  makes  malum 
prohibition,  and  affixes  a  punishment  to  it  if  executed  the 
common  law  adds  to  that  statutory  malum  prohibitum  and 
punishment  a  common  law  punishment,  for  attempting  it, 
when  the  statute  itself  has  not  included  an  attempt  within 
it,  I  apprehend  is  not  supported  by  any  authority  or  any 
view  of  the  law;  and  I  must  think  that  it  cannot  be  supposed 
in  the  high  forum  of  a  £ourt  of  impeachment  as  making  a 
high  crime  and  misdemeanor,  that  the  President  of  the 
United  States,  in  determining  what  his  powers  and  duties 
were  in  regard  to  filling  offices,  should  have  looked  into  the 
common  law  of  the  District  of  Columbia  because  the  offices 
are  inside  of  the  District. 

Then,  upon  the  views  presented  of  the  conspiracy  articles, 
let  us  see  what  the  evidence  is.  There  was  no  preparation 
or  meditation  of  force;  there  was  no  application  of  force; 
there  was  no  threat  of  force  authorized  on  the  part  of  the 
President;  and  there  was  no  expectation  of  force,  for  he 


472         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

expected  and  desired  nothing  more  and  nothing  less  than 
that,  by  the  peaceful  and  regular  exercise  of  authority  on  his 
part,  through  the  ordinary  means  of  its  exercise,  he  should 
secure  obedience,  and  if,  disappointed  in  that,  obedience 
should  not  be  rendered,  all  that  the  President  desired  or 
expected  was  that,  upon  that  legal  basis  thus  furnished  by 
his  official  action,  there  should  be  an  opportunity  of  taking 
the  judgment  of  the  courts  of  law. 

Now,  there  seems  to  be  left  nothing  but  those  articles  that 
relate  to  the  ad  interim  appointment  of  General  Thomas  and 
to  the  removal  of  Mr.  Stanton.  I  will  consider  the  ad 
interim  appointment  first,  meaning  to  assume,  for  the  pur 
pose  of  examining  it  as  a  possible  crime,  that  the  office  had 
been  vacated  and  was  open  to  the  action  of  the  President. 
If  the  office  was  full,  then  there  could  be  no  appointment  by 
the  authority  of  the  President  or  otherwise.  The  whole 
action  of  the  President  manifestly  was  based  upon  the  idea 
that  the  office  was  to  be  vacated  before  an  ad  interim  ap 
pointment  could  possibly  be  made,  or  was  intended  to  take 
effect. 

The  letter  of  authority  accompanied  the  order  of  removal 
and  was,  of  course,  secondary  and  ancillary  to  the  order  of 
removal,  and  was  only  to  take  up  the  duties  of  the  office  and 
discharge  them  if  the  Secretary  of  War  should  leave  the  office 
in  need  of  such  temporary  charge. 

I  think  that  the  only  circumstance  we  have  to  attend  to 
before  we  look  precisely  at  the  law  governing  ad  interim 
appointments  is  some  suggestion  as  to  any  difference  be 
tween  ad  interim  appointments  during  the  session  of  the 
Senate  and  during  the  recess.  The  honorable  Managers, 
perhaps  all  of  them,  but  certainly  the  honorable  Manager, 
Mr.  Boutwell,  has  contended  that  the  practice  of  the  Govern 
ment  in  regard  to  removals  from  office  covered  only  the  case 
of  removals  during  the  recess  of  the  Senate.  It  will  be  part 
of  my  duty  and  labor  when  I  come  to  consider  definitely  the 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  473 

question  of  the  removal  of  Mr.  Stanton  to  consider  that 
point,  but  for  the  purpose  of  General  Thomas's  appointment 
no  such  discrimination  needs  to  be  made.  The  question 
about  the  right  of  the  Executive  to  vacate  an  office,  as  to  be 
discriminated  between  recess  and  session,  arises  out  of  the 
constitutional  distinction  that  is  taken,  to  wit:  that  he  can 
only  fill  an  office  during  session  by  and  with  the  advice  and 
consent  of  the  Senate,  and  that  he  can  during  the  recess,  com 
mission — it  is  not  called  filling  the  office,  or  appointing,— 
but  commission  by  authority,  to  expire  with  the  next  session. 

But  ad  interim  appointments  do  not  rest  upon  the  Consti 
tution  at  all.  They  are  not  regarded,  they  never  have  been 
regarded  as  an  exercise  of  the  appointing  power  in  the  sense 
of  filling  an  office.  They  are  regarded  as  falling  within 
either  the  executive  or  legislative  duty  of  providing  for  a 
management  of  the  duties  of  the  office  before  an  appoint 
ment  is  or  can  properly  be  made.  In  the  absence  of  legis 
lation  it  might  be  said  that  this  power  belonged  to  the 
Executive;  that  a  part  of  his  duty  was,  when  he  saw  that 
accident  had  vacated  an  office  or  that  necessity  had  required 
a  removal,  under  his  general  authority  and  duty  to  see  that 
the  laws  are  executed,  he  should  provide  that  the  public 
service  should  be  temporarily  taken  up  and  carried  on.  I 
do  not  think  that  that  is  an  inadmissible  constitutional 
conclusion. 

But  it  might  equally  well  be  determined  that  it  was  a 
casus  omissus,  for  which  the  Constitution  had  provided  no 
rules  and  which  the  legislation  of  Congress  might  properly 
occupy.  From  the  beginning,  therefore,  as  early  as  1792  and 
1789,  indeed,  provision  is  made  for  temporary  occupation 
of  the  duties  of  an  office,  and  the  course  of  legislation  was 
this:  the  eighth  section  of  the  act  of  1792,  regulating  three 
of  the  departments,  provided  that  temporary  absence  and 
disabilities  of  the  heads  of  departments,  leaving  the  office 
still  full,  might  be  met  by  appointments  of  temporary  per- 


474         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

sons  to  take  charge.  The  act  of  1795  provided  that  in  case  of 
a  vacancy  in  the  office  there  might  be  power  in  the  Executive 
which  would  not  require  him  to  fill  the  office  by  the  consti 
tutional  method,  but  temporarily  to  provide  for  a  discharge 
of  its  duties.  Then  came  the  act  of  1863,  which  in  terms 
covers  to  a  certain  extent  but  not  fully  both  of  these  predica 
ments;  and  I  wish  to  ask  your  attention  to  some  circum 
stances  in  regard  to  the  passage  of  that  act  of  1863.  I 
have  said  that  the  eighth  section  of  the  act  of  1792  provides 
for  filling  temporarily,  not  vacancies,  but  disabilities.  In 
January, .  1863,  the  President  sent  to  Congress  this  brief 
message,  and  Senators  will  perceive  that  it  relates  to  this 
particular  subject: 

To  the  Senate  and  House  of  Representatives: 

I  submit  to  Congress  the  expediency  of  extending  to  other 
departments  of  the  government  the  authority  conferred  on  the 
President  by  the  eighth  section  of  the  act  of  the  8th  of  May,  1792, 
to  appoint  a  person  to  temporarily  discharge  the  duties  of  Secre 
tary  of  State,  Secretary  of  the  Treasury,  and  Secretary  of  War,  in 
case  of  the  death,  absence  from  the  seat  of  government,  or  sick 
ness  of  either  of  those  officers. 

ABRAHAM  LINCOLN. 
Washington,  January  2,  1863. 

That  is  to  say,  the  temporary  disability  provision  of  the 
act  of  1792,  which  covered  all  the  departments  then  in  exis 
tence,  had  never  been  extended  by  law  to  cover  the  other 
departments,  and  the  President  desired  to  have  that  act 
extended.  The  act  of  1795  did  not  need  to  be  extended,  for 
it  covered  "vacancies"  in  its  terms  and  was  applicable  to 
other  departments,  and  vacancies  were  not  in  the  mind  of 
the  President,  nor  was  there  any  need  of  a  provision  of  law 
for  them.  This  message  having  been  referred  to  the  Judi 
ciary  Committee,  the  honorable  Senator  from  Illinois  [Mr. 
Trumbull],  the  chairman  of  that  committee,  made  a  very 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  475 

brief  report;  I  believe  this  is  the  whole  of  it,  or  rather  a 
brief  statement  in  his  place  concerning  it,  in  which  he  said: 

There  have  been  several  statutes  on  the  subject,  and  as  the  laws 
now  exist  the  President  of  the  United  States  has  authority  tempo 
rarily  to  fill  the  office  of  Secretary  of  State  and  Secretary  of  War 
with  one  of  the  other  Secretaries  by  calling  some  person  to  discharge 
the  duties. 

The  other  department  was  the  Treasury. 

We  received  communications  from  the  President  of  the  United 
States  asking  that  the  law  be  extended  to  the  other  executive 
departments  of  the  government,  which  seems  to  be  proper;  and 
we  have  framed  a  bill  to  cover  all  of  those  cases,  so  that  whenever 
there  is  a  vacancy  the  President  may  temporarily  devolve  the  duty 
of  one  of  the  cabinet  ministers  on  another  cabinet  minister,  or 
upon  the  chief  officer  in  the  department  for  the  time  being. 

Here  there  does  not  seem  to  have  been  brought  to  the 
notice  in  terms  of  the  Senate  or  of  the  honorable  Senator  the 
act  of  1795;  nothing  is  said  of  it;  and  it  would  appear, 
therefore,  as  if  the  whole  legislation  of  1863  proceeded  upon 
the  proposition  of  extending  the  act  of  1792  as  to  disabilities 
in  office,  not  vacancies,  except  that  the  honorable  Senator 
uses  the  phrase  "vacancies,"  and  that  he  speaks  of  having 
provided  for  the  occasions  that  might  arise.  The  act  of 
1863  does  not  cover  the  case  of  vacancies  except  by  resig 
nation,  and  it  is  not  therefore,  a  vacancy  act  in  full.  It 
does  add  to  the  disabilities  which  the  President  had  asked 
to  have  covered,  a  case  of  resignation  which  he  did  not  ask  to 
have  covered,  and  which  did  not  need  to  be  covered  by  new 
legislation,  because  the  act  of  1795  embraced  it.  But  this 
act  of  1863  does  not  cover  all  the  cases  of  vacancy.  It  does 
not  cover  vacancies  by  removal,  if  removal  could  be  made  and 
we  supposed  it  could  in  1863;  it  does  not  cover  the  case  of 
expiration  of  office,  which  is  a  case  of  vacancy,  provided 
there  are  terms  to  office. 


476        SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

Under  that  additional  light  it  seems  as  if  the  only  question 
presented  of  guilt  on  the  part  of  the  President  in  respect 
to  the  appointment  to  office  ad  interim  was  a  question  of 
whether  he  violated  a  law.  But  Senators  will  remark  the 
very  limited  form  in  which  that  question  arises.  It  is  not 
pretended  that  the  appointment  of  Thomas,  if  the  office 
was  vacant,  was  a  violation  of  the  civil-tenure  act;  that  is, 
it  is  not  pretended  in  argument,  although  perhaps  it  may  be 
so  charged  in  the  articles;  because  an  examination  of  the 
act  shows  that  the  only  appointments  prohibited  there,  and 
the  infringement  of  which  is  made  penal,  is  appointing  con 
trary  to  the  provisions  of  that  act,  as  was  pointed  out  by  my 
colleague,  Judge  Curtis,  and  seems  to  have  been  assented  to 
in  the  argument  on  the  other  side;  that  an  appointment 
prohibited,  or  an  attempt  at  an  appointment  prohibited, 
relates  to  the  infraction  of  the  policy  and  provisions  of  that 
act  as  applied  to  the  attempt  to  fill  the  offices  that  are  de 
clared  to  be  in  abeyance  under  certain  predicaments.  I 
believe  that  to  be  a  sound  construction  of  the  law,  whether 
assented  to  or  not,  not  to  be  questioned  anywhere. 

Very  well,  then,  supposing  that  the  appointment  of  General 
Thomas  was  not  according  to  law,  it  is  not  against  any  law 
that  prohibits  it  in  terms,  nor  against  any  law  that  has  a 
penal  clause  or  a  criminal  qualification  upon  the  act.  What 
would  it  be  if  attempted  without  authority  of  the  act  of 
1795,  because  that  was  repealed,  and  without  authority  of 
the  act  of  1863,  because  General  Thomas  was  not  an 
officer  that  was  eligible  for  this  temporary  employment? 
It  would  simply  be  that  the  President,  in  the  confusion 
among  these  statutes,  had  appointed,  or  attempted  to 
appoint,  an  ad  interim  discharge  of  the  office  without 
authority  of  law.  You  could  not  indict  him  very  well  for 
it,  and  I  do  not  think  you  can  impeach  him  for  it.  There 
are  an  abundance  of  mandatory  laws  upon  the  President  of 
the  United  States,  and  it  never  has  been  customary  to  put  a 
penal  clause  in  them  till  the  civil-tenure  act  of  1867. 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  477 

But  on  this  subject,  the  ad  interim  appointments,  there  is 
no  penal  clause  and  no  positive  prohibition  in  any  statute. 
There  would  be,  then,  simply  a  defect  of  authority  in  the 
President  to  make  the  appointment.  What,  then,  would 
be  the  consequence?  General  Thomas  might  not  be  entitled 
to  discharge  the  duties  of  the  office;  and  if  he  had  undertaken 
to  give  a  certificate  as  Secretary  ad  interim  to  a  paper  that 
was  to  be  read  in  evidence  in  a  Court,  and  a  lawyer  had  ob 
jected  that  General  Thomas  was  not  Secretary  ad  interim, 
and  had  brought  the  statutes,  the  certificate  might  have 
failed.  That  is  all  that  can  be  claimed  or  pretended  in  that 
regard. 

But  we  have  insisted,  and  we  do  now  insist,  that  the  act  of 
1795  was  in  force;  and  that  whether  the  act  of  1795  was  or 
was  not  in  force,  is  one  of  those  questions  of  dubious  inter 
pretation  of  implied  repeal  upon  which  no  officer,  humble  or 
high,  could  be  brought  into  blame  for  having  an  opinion 
one  way  or  the  other.  And  if  you  proceed  upon  these 
articles  to  execute  a  sentence  of  removal  from  office  of  a 
President  of  the  United  States,  you  will  proceed  upon  an  in 
fliction  of  the  highest  possible  measure  of  civil  condemnation 
upon  him  personally,  and  of  the  highest  possible  degree  of 
interference  with  the  constitutionally  elected  Executive 
dependent  on  suffrage  that  it  is  possible  for  a  Court  to  inflict, 
and  you  will  rest  it  on  the  basis  either  that  the  act  of  1795 
was  repealed,  or  upon  the  basis  that  there  was  not  a  doubt 
or  difficulty  or  an  ignorance  upon  which  a  President  of  the 
United  States  might  make  an  ad  interim  appointment  of 
General  Thomas  for  a  day,  followed  by  a  nomination  of  a 
permanent  successor  on  the  succeeding  day.  Truly,  indeed, 
we  are  getting  very  nice  in  our  measure  and  criticism  of  the 
absolute  obligations  and  of  the  absolute  acuteness  and  thor 
oughness  of  executive  functions  when  we  seek  to  apply  the 
process  of  impeachment  and  removal  to  a  question  whether 
an  act  of  Congress  required  him  to  name  a  head  of  a  depart- 


478         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

ment  to  take  the  vacant  place  ad  interim  or  an  act  of  Congress 
not  repealed  permitted  him  to  take  a  suitable  person.  You 
certainly  do  not,  in  the  ordinary  affairs  of  life,  rig  a  trip 
hammer  to  crack  a  walnut. 

I  think,  Mr.  Chief  Justice,  that  I  shall  be  able  to  conclude 
what  I  may  have  to  say  to  the  Senate  further  certainly 
within  the  compass  of  an  hour;  and  as  the  customary  hour  of 
adjournment  has  been  reached,  I  may,  perhaps,  be  permitted 
to  say  that  I  feel  somewhat  sensibly  the  impression  of  a 
long  argument. 

FOURTH  DAY,  MAY  1,   1868. 

Mr.  Chief  Justice  and  Senators,  I  cannot  but  feel  that, 
notwithstanding  the  unfailing  courtesy  and  the  long-suffering 
patience  which  for  myself  and  my  colleagues  I  have  every 
reason  cheerfully  to  acknowledge  on  the  part  of  the  Court 
in  the  progress  of  this  trial  and  in  the  long  argument,  you 
had  at  the  adjournment  yesterday  reached  somewhat  of  the 
condition  of  feeling  of  a  very  celebrated  judge,  Lord  Ellen- 
borough,  who,  when  a  very  celebrated  lawyer,  Mr.  Fearne, 
had  conducted  an  argument  upon  the  interesting  subject  of 
contingent  remainders  to  the  ordinary  hour  of  adjournment, 
and  suggested  that  he  would  proceed  whenever  it  should  be 
his  lordship's  pleasure  to  hear  him,  responded,  "  The  Court 
will  hear  you,  sir,  to-morrow;  but  as  to  pleasure,  that  has 
been  long  out  of  the  question." 

Be  that  as  it  may,  duties  must  be  done,  however  arduous, 
and  certainly  your  kindness  and  encouragement  relieve  from 
all  unnecessary  fatigue  in  the  progress  of  the  cause.  We 
will  look  for  a  moment,  under  the  light  which  I  have  sought 
to  throw  upon  the  subject,  a  little  more  particularly  at  the 
two  acts,  the  one  of  1795  and  the  other  of  1863,  that  have 
relation  to  this  subject  of  ad  interim  appointments.  The 
act  of  1795  provides: 

That  in  case  of  vacancy  in  the  office  of  Secretary  of  State, 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  479 

Secretary  of  the  Treasury,  or  of  the  Secretary  of  the  Department 
of  War,  or  of  any  officer  of  either  of  the  said  departments,  whose 
appointment  is  in  the  head  thereof,  whereby  they  cannot  perform 
the  duties  of  their  said  respective  offices,  it  shall  be  lawful  for  the 
President  of  the  United  States,  in  case  he  shall  think  it  necessary, 
to  authorize  any  person  or  persons,  at  his  discretion,  to  perform 
the  duties  of  the  said  respective  offices  until  a  successor  be  appointed 
or  such  vacancy  be  filled:  Provided,  That  no  one  vacancy  shall 
be  supplied  in  manner  aforesaid  for  a  longer  term  than  six  months. 

The  act  of  1863,  which  was  passed  under  a  suggestion  of 
the  President  of  the  United  States,  not  for  the  extension  of 
the  vacancy  act  which  I  have  read  to  the  other  departments, 
but  for  the  extension  of  the  temporary-disability  provision 
of  the  act  of  1792,  does  provide  as  follows: 

In  case  of  the  death,  resignation,  absence  from  the  seat  of 
government,  or  sickness  of  the  head  of  any  executive  department 
of  the  Government  or  of  any  officer  of  either  of  the  said  depart 
ments  whose  appointment  is  not  in  the  head  thereof,  whereby 
they  cannot  perform  the  duties  of  their  respective  offices,  it  shall 
be  lawful  for  the  President  of  the  United  States,  in  case  he  shall 
think  it  necessary,  to  authorize — 

Not  "any  person  or  persons,"  as  is  the  act  of  1795,  but — 

to  authorize  the  head  of  any  other  executive  department  or  other 
officer  in  either  of  said  departments  whose  appointment  is  vested 
in  the  President,  at  his  discretion,  to  perform  the  duties  of  the  said 
respective  offices  until  a  successor  be  appointed,  or  until  such 
absence  or  disability  by  sickness  shall  cease :  Provided,  That  no  one 
vacancy  shall  be  supplied  in  manner  aforesaid  for  a  longer  term 
than  six  months. 

It  will  be  observed  that  the  eighth  section  of  the  act  of 
1792,  to  which  I  will  now  call  attention,  being  in  1  Statutes 
at  Large,  page  281,  provides  thus: 

That  in  case  of  the  death,  absence  from  the  seat  of  government, 
or  sickness  of  the  Secretary  of  State,  Secretary  of  the  Treasury, 


480         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

or  of  the  Secretary  of  the  War  Department,  or  of  any  officer  of 
either  of  the  said  departments,  whose  appointment  is  not  in  the 
head  thereof,  whereby  they  cannot  perform  the  duties  of  their 
respective  offices,  it  shall  be  lawful  for  the  President  of  the  United 
States,  in  case  he  shall  think  it  necessary,  to  authorize  any  person 
or  persons,  at  his  discretion,  to  perform  the  duties  of  the  said 
respective  offices  until  a  successor  be  appointed,  or  until  such 
absence  or  inability  by  sickness  shall  cease. 

I  am  told,  or  I  understand  from  the  argument,  that  if  there 
was  a  vacancy  in  the  office  of  Secretary  of  War  by  the  com 
petent  and  effective  removal  of  Mr.  Stanton  by  the  exercise 
of  the  President's  authority  in  his  paper  order,  there  has 
come  to  be  some  infraction  of  law  by  reason  of  the  Presi 
dent's  designating  General  Thomas  to  the  ad  interim  charge 
of  the  office,  because  it  is  said  that  though  under  the  act  of 
1795,  or  under  the  act  of  1792,  General  Thomas,  under  the 
comprehension  of  "any  person  or  persons,"  might  be  open 
to  the  presidential  choice  and  appointment,  yet  that  he 
does  not  come  within  the  limited  and  restricted  right  of 
selection  for  ad  interim  duties  which  is  imposed  by  the  act 
of  1863;  and  it  seems  to  have  been  assumed  in  the  argument 
that  the  whole  range  of  selection  permitted  under  that  act 
was  of  the  heads  of  departments.  But  your  attention  is 
drawn  to  the  fact  that  it  permits  the  President  to  designate 
any  person  who  is  either  the  head  of  a  department,  or  who 
holds  any  office  in  any  department  the  appointment  of  which 
is  from  the  President ;  and  I  would  like  to  know  why  General 
Thomas,  Adjutant  General  of  the  armies  of  the  United 
States,  holding  his  position  in  that  Department  of  War, 
is  not  an  officer  appointed  by  the  President,  and  open  to  his 
selection  for  this  temporary  duty;  and  I  would  like  to  know 
upon  what  principle  of  ordinary  succession  or  recourse  for 
the  devolution  of  the  principal  duty  any  officer  could  stand 
better  suited  to  assume  for  a  day  or  for  a  week  the  discharge 
of  the  ad  interim  trust  than  the  Adjutant  General  of  the 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  481 

armies  of  the  United  States,  being  the  staff  officer  of  the 
President,  and  the  person  who  stands  there  as  the  principal 
director  and  immediate  agent  of  the  War  Department  in 
the  exercise  of  its  ordinary  functions? 

I  cannot  but  think  it  is  too  absurd  for  me  to  argue  to  a 
Senate  that  the  removal  of  a  President  of  the  United  States 
should  not  depend  upon  the  question  whether  an  Adjutant 
General  was  a  proper  locum  tenens  or  not,  or  whether  entangled 
between  the  horns  of  the  repealed  and  unrepealed  statutes 
the  President  may  have  erred  in  that  on  which  he  hung  his 
rightful  authority. 

Let  me  now  call  your  attention  to  an  exercise  of  this 
power  of  ad  interim  appointment  as  held  in  the  adminis 
tration  of  President  Lincoln,  at  page  582  of  the  record, 
before  the  enactment  of  the  statute  of  1863.  You  will 
observe  that  before  the  passing  of  the  act  of  1863  there  was 
in  force  no  statutory  authority  for  the  appointment  of  ad 
interim  discharge  of  the  offices  except  the  acts  of  1792  and 
1795,  which  were  limited  in  their  terms  to  the  Departments 
of  War,  of  State,  and  of  the  Treasury.  You  have,  therefore, 
directly  in  this  action  of  President  Lincoln  the  question  of 
ultra  vires,  not  of  an  infraction  of  a  prohibitory  statute  with 
a  penalty,  but  of  an  assumption  to  make  an  appointment 
without  the  adequate  support  of  an  enabling  act  of  Congress 
to  cover  it,  for  he  proceeded,  as  will  be  found  at  the  very 
top  of  that  page : 

I  hereby  appoint  St.  John  B.  L.  Skinner,  now  acting  First 
Assistant  Postmaster  General,  to  be  acting  Postmaster  General 
ad  interim,  in  place  of  Hon.  Montgomery  Blair,  now  temporarily 
absent. 

ABRAHAM  LINCOLN. 

Washington,  September  22,  1862. 

The  Department  of  the  Post  Office  was  not  covered  by 
the  acts  of  1792  or  1795,  and  the  absence  of  authority  in 


482         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

respect  to  it  and  the  other  later  organized  departments 
formed  the  occasion  of  the  President's  message  which  led 
to  the  enactment  of  1863.  I  would  like  to  know  whether, 
when  President  Lincoln  appointed  Mr.  Skinner  to  be  Post 
master  General,  without  an  enabling  and  supporting  act 
of  Congress  to  justify  him,  he  deserved  to  be  impeached, 
whether  that  was  a  crime  against  the  Constitution  and  his 
oath  of  office,  whether  it  was  a  duty  due  to  the  Constitu 
tion  that  he  should  be  impeached,  removed,  and  a  new 
election  ordered? 

I  cannot  but  insist  upon  always  separating  from  these 
crimes  alleged  in  articles  the  guilt  that  is  outside  of  articles 
and  that  has  not  been  proved,  and  that  I  have  not  answered 
for  the  respondent  nor  have  been  permitted  to  rebut  by 
testimony.  I  take  the  thing  as  it  is,  and  I  regard  each 
article  as  including  the  whole  compass  of  a  crime,  the  whole 
range  of  imputation,  the  whole  scope  of  testimony  and  con 
sideration;  and  unless  there  be  some  measure  of  guilt,  some 
purpose,  or  some  act  of  force,  of  violence,  of  fraud,  of  cor 
ruption,  of  injury,  of  evil,  I  cannot  find  in  mistaken, 
erroneous,  careless,  or  even  indifferent  excesses  of  authority 
making  no  impression  upon. the  fabric  of  the  government, 
and  giving  neither  menace  nor  injury  to  the  public  service, 
any  foundation  for  this  extraordinary  proceeding  of  im 
peachment. 

Am  I  right  in  saying  that  an  article  is  to  contain  guilt 
enough  in  itself  for  a  verdict  to  be  pronounced  by  the  hon 
orable  members  of  the  court  "guilty"  or  "not  guilty"  on 
that  article;  guilty,  not  of  an  act  as  named,  but  "guilty  of  a 
high  crime  and  misdemeanor  as  charged,"  and  as  the  form  of 
question  adopted  in  the  Peck  and  Chase  trials  is  distinctly 
set  down,  and  not  the  question  used  in  the  Pickering  trial 
for  a  particular  purpose,  which  has  led  the  honorable  mana 
ger  [Mr.  Wilson],  to  denounce  it  as  a  mockery  of  justice,  a 
finding  of  immaterial  facts,  leaving  no  conclusions  of  law  or 
judgment  to  be  found  by  anybody. 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  483 

There  is  another -point  of  limitation  on  the  authority  of 
the  President,  as  contained  both  in  the  act  of  1795  and  of 
1863,  which  has  been  made  the  subject  of  some  comment  by 
the  learned  and  honorable  manager  [Mr.  Boutwell]:  it  is 
that  anyhow  and  anyway  the  President  has  been  guilty  of  a 
high  crime  and  misdemeanor,  however  innocent  otherwise, 
because  the  six  months'  ability  accorded  to  him  by  the  act 
of  1795  or  1863  had  already  expired  before  he  appointed 
General  Thomas. 

The  reasoning  I  do  not  exactly  understand;  it  is  definitely 
written  down  and  the  words  have  their  ordinary  meaning, 
I  suppose;  but  how  it  is  that  the  President  is  chargeable 
with  having  filled  a  vacancy  thus  occurring  on  the  21st  of 
February,  1868,  if  it  occurred  at  all,  by  an  appointment 
that  he  made  ad  interim  on  that  day  which  was  to  run  in 
the  future,  what  the  suggestion  that  the  six  months'  right 
had  expired  rests  upon,  I  do  not  understand.   It  is  attempted 
to  connect  it  in  some  way  with  a  preceding  suspension  of  Mr. 
Stanton  under  the  civil-tenure  act,  which  certainly  did  not 
create  a  vacancy  in  the  office,  as  by  law  it  was  prohibited 
from  doing,  nor  did  it  create  in  any  form  or  manner  a  vacancy 
in  the  office.     No  matter,  then,  whether  the  suspension  was 
under  the  civil-tenure-office  act  or  the  act  of  1795,  the  office 
was  not  vacant  until  the  removal;  and  whatever  there  may 
have  been  wanting  in  authority  in  that  preceding  action 
of  the  President  as  not  sufficiently  supported  by  his  consti 
tutional   authority  to  suspend,   which  he  claims,   and  as 
covered  necessarily  by  the  act  of  1867,  as  is  argued  on  the 
part  of  the  managers,  I  cannot  see  that  it  has  anything  to 
do  with  cutting  short  the  term  during  which  it  was  com 
petent  for  the  President  to  make  an  ad  interim  appointment. 
There  remains  nothing  to  be  considered  except  about  an 
ad  interim  appointment  as  occurring  during  the  session  of  the 
Senate.     An  effort  has  been  made  to  connect  a  discrimina 
tion  between  the  session  and  the  recess  of  the  Senate  in  its 


484         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

operation  upon  the  right  of  ad  interim  or  temporary  appoint 
ments,  with  the  discrimination  which  the  Constitution  makes 
between  the  filling  of  an  office  during  the  session  and  the 
limited  commission  which  is  permitted  during  the  recess. 
But  sufficiently,  I  imagine,  for  the  purposes  of  conviction  in 
your  minds,  it  has  been  shown  that  temporary  appoint 
ment  does  not  rest  upon  the  constitutional  provisions  at  all; 
that  it  is  not  a  filling  of  the  office,  which  remains  just  as 
vacant,  as  far  as  the  constitutional  right  and  duty  remains  or 
is  divided  in  the  different  departments  of  the  government, 
as  if  the  temporary  appointment  had  not  been  made. 
When  the  final  appointment  is  made,  it  dates  as  from  the 
time  of  the  vacancy,  and  to  supply  the  place  of  the  person, 
whose  vacancy  led  to  the  ad  interim  appointment.  That  in 
the  very  nature  of  things  there  should  be  no  difference  in  this 
capacity  between  recess  and  session  sufficiently  appears,  and 
the  acts  of  Congress  draw  no  distinction,  and  the  practice 
of  the  government  makes  not  the  least  difference. 

We  are  able  to  present  to  your  notice  on  the  pages  of 
this  record,  cases  enough  applicable  to  the  very  heads  of 
departments  to  make  it  unnecessary  to  argue  the  matter 
upon  general  principles  any  further.  Mr.  Nelson,  on  the 
29th  of  February,  1844,  was  appointed  ad  interim  in  the 
State  Department  during  the  session  of  the  Senate.  This  is 
to  be  found  on  page  556.  General  Scott  was  appointed  in 
the  War  Department  July  23,  1850,  page  537,  during  the 
session  of  the  Senate;  Moses  Kelly,  Secretary  of  the  Interior, 
January  10,  1861,  during  the  session  of  the  Senate,  at  page 
558;  and  Joseph  Holt,  Secretary  of  War,  on  the  1st  of  Jan 
uary,  1861,  during  the  session  of  the  Senate,  at  page  583. 
Whether  these  were  to  fill  vacancies  or  for  temporary  disa 
bilities  makes  no  difference  on  the  question;  nor  how  the 
vacancy  arose,  whether  by  removal  or  resignation  or  death. 

The  question  of  the  ad  interim  faculty  of  appointment 
depends  upon  no  such  considerations.  They  were  actual 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  485 

vacancies  filled  by  ad  interim  appointment,  and  related,  all 
except  that  of  Moses  Kelly,  to  departments  that  were 
covered  by  the  legislation  of  1792  and  1795.  That  of  Moses 
Kelly  to  the  Department  of  the  Interior  was  not  covered 
by  that  legislation,  and  would  come  within  the  Same  prin 
ciple  with  the  appointment  of  Mr.  Skinner  which  I  have 
noticed  on  page  582. 

I  now  come  with  the  utmost  confidence,  as  having  passed 
through  all  possible  allegations  of  independent  infraction  of 
the  statute,  to  the  consideration  of  the  removal  of  Mr. 
Stanton  as  charged  as  a  high  crime  and  misdemeanor  in  the 
first  article,  and  as  to  be  passed  upon  by  this  court  under 
that  imputation  and  under  the  President's  defence.  The 
crime  as  charged  must  be  regarded  as  the  one  to  be  con 
sidered,  and  the  crime,  as  charged  and  also  proved,  to  be  the 
only  one  upon  which  the  judgment  has  to  pass.  Your 
necessary  concession  to  these  obvious  suggestions  relieves, 
very  much  of  any  difficulty  and  of  any  protracted  discussion, 
this  very  simple  subject  as  it  will  appear  to  be. 

Before  taking  up  the  terms  of  the  article  and  the  consid 
eration  of  the  facts  of  the  procedure  I  ask  your  attention 
now,  for  we  shall  need  to  use  them  as  we  proceed,  to  some 
general  light  to  be  thrown,  both  upon  the  construction  of 
the  act  by  the  debates  of  Congress  and  upon  the  relation 
of  the  cabinet  as  proper  witnesses  or  proper  aids  in  reference 
to  the  intent  and  purpose  of  the  President  within  the  prac 
tice  of  this  government,  and  with  the  latter,  first. 

Most  extraordinary  (as  I  think)  views  have  been  pre 
sented  in  behalf  of  the  House  of  Representatives  in  relation 
to  cabinet  ministers.  The  personal  degradation  fastened 
upon  them  by  the  observation  of  the  honorable  manager 
[Mr.  Boutwell]  I  have  sufficient  <y  referred  to;  but  I  recollect 
that  there  are  in  your  number  two  other  honorable  senators, 
the  honorable  senator  from  Maryland  [Mr.  Johnson]  and 
the  honorable  senator  from  Iowa  [Mr.  Harlan]  who  must 


486         SPEECHES  OP  WILLIAM  MAXWELL  EVARTS 

take  their  share  of  the  opprobrium  which  yesterday  I  divided 
among  three  members  of  this  court  alone. 

But  as  a  matter  of  constitutional  right,  of  ability  of  the 
President  to  receive  aid  and  direction  from  these  heads  of 
departments,  it  has  been  presented  as  a  dangerous  innova 
tion,  of  a  sort  of  Star  Chamber  council,  I  suppose,  intruded 
into  the  Constitution,  that  was  to  devour  our  liberties. 
Well,  men's  minds  change  rapidly  on  all  these  public  ques 
tions,  and  perhaps  some  members  of  this  honorable  Senate 
may  have  altered  their  views  on  that  point  from  the  time  of 
the  date  of  the  paper  I  hold  in  my  hand,  to  which  I  wish  to 
ask  your  attention.  It  is  a  representation  that  was  made  to 
Mr.  President  Lincoln  by  a  very  considerable  number  of 
senators  as  to  the  propriety  of  his  having  a  cabinet  that 
could  aid  him  in  the  discharge  of  his  arduous  executive 
duties: 

The  theory  of  our  government,  the  early  and  uniform  practical 
construction  thereof,  is  that  the  President  should  be  aided  by  a  cabi 
net  council  agreeing  with  him  in  political  principle  and  general 
policy,  and  that  all  important  measures  and  appointments  should 
be  the  result  of  their  combined  wisdom  and  deliberation.  The 
most  obvious  and  necessary  condition  of  things,  without  which  no 
administration  can  succeed,  we  and  the  public  believe  does  not 
exist;  and,  therefore,  such  selections  and  changes  in  its  members 
should  be  made  as  will  secure  to  the  country  unity  of  purpose  and 
action  in  all  material  and  essential  respects.  More  especially  in  the 
present  crisis  of  public  affairs  the  cabinet  should  be  exclusively 
composed  of  statesmen  who  are  cordial,  resolute,  unwavering  sup 
porters  of  the  principles  and  purposes  above  mentioned. 

There  are  appended  to  this  paper  as  it  comes  to  me  the 
signatures  of  twenty-five  senators.  Whether  it  was  so 
signed  or  not  I  am  not  advised;  but  that  it  was  the  action  of 
those  senators,  I  believe,  is  not  doubted,  and  among  them 
there  are  some  fifteen  or  more  that  are  members  of  this  pres 
ent  court.  The  paper  has  no  date,  but  the  occurrence  was,  I 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  487 

think,  some  time  in  the  year  1862  or  1863,  a  transaction  and 
a  juncture  which  is  familiar  to  the  recollection  of  senators  who 
took  part  in  it,  and  doubtless  of  all  the  public  men  whom 
I  have  the  honor  now  to  address. 

These  honorable  managers  in  behalf  of  the  House  of  Rep 
resentatives  do  not  hold  to  these  ideas  at  all,  and  I  must 
think  that  the  course  of  this  court  in  its  administration  of 
the  laws  of  evidence  as  not  enabling  the  President  to  pro 
duce  the  supporting  aid  of  his  cabinet,  which  you  said  he 
ought  to  have  in  all  his  measures  and  views,  has  either  pro 
ceeded  upon  the  ground  that  his  action,  in  your  judgment, 
did  not  need  any  explanation  or  support,  or  else  you  had  not 
sufficiently  attended  to  these  valuable  and  useful  views  about 
a  cabinet  which  were  presented  to  the  notice  of  President 
Lincoln.  Public  rumor  has  said,  the  truth  of  which  I  do  not 
vouch,  as  I  have  no  knowledge,  but  there  are  many  who 
well  know  that  the  President  rather  turned  the  edge  of  this 
representation,  by  a  suggestion  whether  in  fact  the  meaning 
of  the  honorable  senators  was  not  that  his  cabinet  should 
agree  with  them  rather  than  with  him,  Mr.  Lincoln.  How 
ever  that  may  be,  the  doctrines  are  good  and  are  according 
to  the  custom  of  the  country  and  the  law  of  our  government. 

We  may  then  find  it  quite  unnecessary  to  refute  by  any 
very  serious  and  prolonged  argument  the  imputations  and 
invectives  against  cabinet  agreement  with  the  President 
which  have  been  urged  upon  your  attention. 

And  now,  as  bearing  both  on  the  question  of  a  fair  right 
to  doubt  and  deliberate  on  the  part  of  the  President  on  the 
constitutionality  of  this  law,  the  civil-tenure  act,  and  on  the 
construction  of  its  first  section  as  embracing  or  not  em 
bracing  Mr.  Stanton,  I  may  be  permitted  to  attract  your 
attention  to  some  points  in  the  debates  in  the  Congress  which 
have  not  yet  been  alluded  to,  as  well  as  to  repeat  some  very 
brief  quotations  which  have  once  been  presented  to  your 
attention.  I  will  not  recall  the  history  of  the  action  of  the 


488         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

House  on  the  general  frame  and  purpose  of  the  bill,  nor  the 
persistence  with  which  the  Senate,  as  the  adviser  of  the 
President  in  the  matters  of  appointment  as  well  as  a  member 
of  the  legislative  branch  of  the  government,  pressed  the 
exclusion  of  cabinet  ministers  from  the  purview  of  the  bill 
altogether;  but  when  it  was  found  that  the  House  was  per 
sistent  also  in  its  view,  the  Senate  concurred  with  it  on  con 
ference  in  a  measure  of  accommodation  concerning  this 
special  matter  of  the  cabinet  which  is  now  to  be  found  in  the 
text  of  the  first  section  of  the  act.  In  the  debate  on  the 
tenure-of-office  bill  the  honorable  senator  from  Oregon  [Mr. 
Williams],  who  seems  to  have  had,  with  the  honorable 
senator  from  Vermont  [Mr.  Edmunds],  some  particular  con 
duct  of  the  debate  according  to  a  practice  apparently  quite 
prevalent  now  in  our  legislative  halls,  said  this : 

I  do  not  regard  the  exception  as  of  any  great  practical  conse 
quence — 

That  is,  the  exception  of  cabinet  ministers — 

because,  I  suppose,  if  the  President  and  any  head  of  a  department 
should  disagree,  so  as  to  make  their  relations  unpleasant,  and  the 
President  should  signify  a  desire  that  that  head  of  department 
should  retire  from  the  cabinet,  that  would  follow  without  any 
positive  act  of  removal  on  the  part  of  the  President.  (Congres 
sional  Globe,  39th  Congress,  second  session,  p.  383.) 

Mr.  Sherman,  bearing  on  the  same  point,  said: 

Any  gentleman  fit  to  be  a  cabinet  minister,  who  receives  an  inti 
mation  from  his  chief  that  his  longer  continuance  in  that  office  is 
unpleasant  to  him,  would  necessarily  resign.  If  he  did  not  resign, 
it  would  show  he  was  unfit  to  be  there.  I  cannot  imagine  a  case 
where  a  cabinet  officer  would  hold  on  to  his  place  in  defiance  and 
against  the  wishes  of  his  chief.  (  Ibid.,  p.  1046.) 

But,  nevertheless,  this  practical  lack  of  importance  in  the 
measures  which  induced  the  Senate  to  yield  their  opinions 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  489 

of  regularity  of  governmental  proceedings  and  permit  a 
modification  of  the  bill,  led  to  the  enactment  as  it  now 
appears;  and  the  question  is  how  this  matter  was  under 
stood,  not  by  one  man,  not  by  one  speaker,  but,  so  far  as 
the  record  goes,  by  the  whole  Senate,  on  the  question  of 
construction  of  the  act  as  inclusive  of  Mr.  Stanton  in  his 
personal  incumbency  of  office  or  not.  When  the  conference 
committee  reported  the  section  as  it  now  reads,  as  the  result 
of  a  compromise  between  the  Senate  in  its  firm  views  and 
the  House  in  its  firm  purposes,  the  honorable  senator  from 
Michigan  [Mr.  Howard]  asked  that  the  proviso  might  be 
explained.  Now,  you  are  at  the  very  point  of  finding  out 
what  it  means  when  a  senator  gets  so  far  as  to  feel  a  doubt, 
and  wants  to  know  and  asks  those  who  have  charge  of  the 
matter  and  are  fully  competent  to  advise  him.  The  honor 
able  senator,  Mr.  Williams,  states: 

Their  terms  of  office  shall  expire  when  the  term  of  office  of  the 
President  by  whom  they  were  appointed  expires. 

I  have,  from  the  beginning  of  this  controversy,  regarded  this  as 
quite  an  immaterial  matter,  for  I  have  no  doubt  that  any  cabinet 
minister  who  has  a  particle  of  self-respect — and  we  can  hardly 
suppose  that  any  man  would  occupy  so  responsible  an  office  with 
out  having  that  feeling — would  decline  to  remain  in  the  cabinet 
after  the  President  had  signified  to  him  that  his  presence  was  no 
longer  needed.  As  a  matter  of  course,  the  effect  of  this  provision 
will  amount  to  very  little,  one  way  or  the  other;  for  I  presume 
that  whenever  the  President  sees  proper  to  rid  himself  of  an 
offensive  or  disagreeable  cabinet  minister,  he  will  only  have  to 
signify  that  desire,  and  the  minister  will  retire,  and  a  new  appoint 
ment  be  made.  (Ibid.,  p.  1515.) 

Mr.  Sherman,  one  of  the  committee  of  conference,  states: 

I  agreed  to  the  report  of  the  conference  committee  with  a  great 
deal  of  reluctance. 

I  think  that  no  gentleman,  no  man  of  any  sense  of  honor,  would 
hold  a  position  as  a  cabinet  officer  after  his  chief  desired  his  re- 


490         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

moval,  and,  therefore,  the  slightest  intimation  on  the  part  of  the 
President  would  always  secure  the  resignation  of  a  cabinet  officer. 
For  this  reason  I  do  not  wish  to  jeopard  this  bill  by  an  unimportant 
and  collateral  question. 

He  proceeds  further: 

The  proposition  now  submitted  by  the  conference  conmittee — 

And  this  was  in  answer  to  the  demand  of  the  Senate  to 
know  from  the  committee  what  they  had  done,  and  what 
the  operation  of  it  was  to  be.  The  answer  of  Mr.  Sherman  is : 

The  proposition  now  submitted  by  the  conference  committee 
is  that  a  cabinet  minister  shall  hold  his  office  during  the  life  or  term 
of  the  President  who  appointed  him.  //  the  President  dies  the 
cabinet  goes  out;  if  the  President  is  removed  for  cause  by  impeach 
ment  the  cabinet  goes  out;  at  the  expiration  of  the  term  of  the  Presi 
dent's  office  the  cabinet  goes  out. 

'This  is  found  at  page  1515  of  the  Globe  of  that  year.  Now, 
how  in  the  face  of  this  can  we  with  patience  listen  to  long 
arguments  to  show  that,  in  regard  to  cabinet  ministers  sit 
uated  as  Mr.  Stanton  is,  the  whole  object  of  limitation  of 
the  proviso  and  the  bill  to  which  the  Senate  was  ready  to 
assent  becomes  nugatory  and  unprotective  of  the  President's 
necessary  right,  by  a  constructive  enforcement  against  him 
of  a  continuing  cabinet  officer  whom  he  never  appointed  at 
all?  And  how  shall  we  tolerate  this  argument  that  the  term 
of  a  President  lasts  after  he  is  dead,  and  that  the  term  in 
which  Mr.  Stanton  was  appointed  by  Mr.  Lincoln  lasts 
through  the  succeeding  term  to  which  Mr.  Lincoln  was  sub 
sequently  elected?  But  that  is  not  the  point.  You  are  asked 
to  remove  a  President  from  office  under  the  stigma  of  im 
peachment  for  crime,  to  strike  down  the  only  elected  head 
of  the  government  that  the  actual  circumstances  permit  the 
Constitution  to  have  recourse  to,  and  to  assume  to  your 
selves  the  sequestration  and  administration  of  that  office  ad 
interim  upon  the  guilt  of  a  President  in  thinking  that  Mr. 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  491 

Sherman,  in  behalf  of  the  conference  committee,  was  right 
in  explaining  to  the  Senate  what  the  conference  committee 
had  done.  Nobody  contradicted  him;  nobody  wanted  any 
further  explanation;  nobody  doubted  that  there  was  no  vice 
or  folly  in  this  act  that,  in  undertaking  to  recognize  a  limited 
right  of  the  President  not  to  have  ministers  retained  in  office 
that  he  had  not  had  some  voice  in  appointing,  gave  it  the 
shape,  and  upon  these  reasons,  that  it  bears  to-day. 

And  I  would  like  to  know  who  it  is,  in  this  honorable  Senate, 
that  will  bear  the  issue  of  the  scrutiny  of  the  revising  people 
of  the  United  States,  on  a  removal  from  office  of  the  President 
for  his  removal  of  an  officer,  that  the  Senate  has  thus  declared 
not  to  be  within  the  protection  of  the  civil-tenure  act.  Agree 
that,  judicially,  afterward  it  may  be  determined  anywhere 
that  he  is,  who  will  pronounce  a  judgment  that  it  is  wrong 
to  doubt?  Ego  assentior  eo,  the  President  might  well  say,  in 
deference  to  the  opinion  of  Mr.  Sherman,  even  if  that  judg 
ment  of  some  inferior  court,  to  say  nothing  even  of  the  high 
est,  the  Supreme  Court,  or  the  highest  special  jurisdiction, 
this  court,  should  determine  otherwise. 

But  the  matter  was  brought  up  a  little  more  distinctly. 
Mr.  Doolittle  having  said  that  this  proviso  would  not  keep 
in  the  Secretary  of  War  and  that  that  had  been  asserted  in 
debate  as  its  object,  Mr.  Sherman,  still  having  charge  of  the 
matter,  as  representing  the  conference  committee,  proceeds : 

That  the  Senate  had  no  such  purpose  was  shown  by  its  vote 
twice  to  make  this  exception.  That  this  provision  does  not  apply 
to  the  present  case  is  shown  by  the  fact  that  its  language  is  so 
framed  as  not  to  apply  to  the  present  President.  The  senator 
shows  that  himself,  and  argues  truly  that  it  would  not  prevent 
the  present  President  from  removing  the  Secretary  of  War,  the  Sec 
retary  of  the  Navy,  and  the  Secretary  of  State.  And  if  I  supposed 
that  either  of  these  gentlemen  was  so  wanting  in  manhood,  in 
honor,  as  to  hold  his  place  after  the  politest  intimation  by  the 
President  of  the  United  States  that  his  services  were  no  longer 


492        SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

needed,  I,  certainly,  as  a  senator,  would  consent  to  his  removal, 
and  so  would  we  all. 

That  is  at  page  1516  of  the  Globe;  and  yet  later,  in  con 
tinuation  of  the  explanation,  the  same  honorable  senator 
says  thus  definitely: 

We  provide  that  a  cabinet  minister  shall  hold  his  office,  not  for  a 
fixed  term,  not  until  the  Senate  shall  consent  to  his  removal,  but 
as  long  as  the  power  that  appoints  him  holds  office.  If  the  principal 
office  is  vacated,  the  cabinet  minister  goes  out.  (Page  1517.) 

And  if  the  principal  office  is  not  vacated  by  death  under 
our  government,  we  certainly  belong  to  the  race  of  the  im 
mortals.  Now,  Senators,  I  press  upon  your  consideration  the 
inevitable,  the  inestimable  weight  of  this  senatorial  discus 
sion  and  conclusion.  I  do  not  press  it  upon  particular  sena 
tors  who  took  part  in  it,  es'pecially.  I  press  it  upon  the  con 
curring,  unresisting,  assenting,  agreeing,  confirming,  corro 
borating  silence  of  the  whole  Senate.  And  I  would  ask  if  a 
President  of  the  United  States  and  his  cabinet,  having 
before  them  the  question  upon  their  own  solution  of  the 
ambiguities  or  difficulties,  if  there  be  any  (and  I  think  there 
are  not),  in  this  section,  might  not  well  repose  upon  the  sense 
of  the  Senate  that  they  would  not  have  agreed  to  the  bill  if 
it  had  any  such  efficacy  as  is  now  pretended  for  it,  and  the 
explanation  of  the  committee,  and  the  acceptance  of  it  by 
the  Senate  that  it  had  no  such  possible  construction  or  force. 
Nevertheless  if  the  President  must  be  convicted  of  a  high 
crime  and  misdemeanor  for  this  concurrence  with  your  united 
judgments,  and  that  sentence  proceeds  also  from  your  united 
judgments,  we  shall  have  great  difficulty  in  knowing  which 
of  your  united  judgments  is  entitled  to  the  most  regard. 

In  the  House  this  matter  was  considered  in  the  statements 
of  Mr.  Schenck,  who  with  Mr.  Williams  and  Mr.  Wilson, 
now  among  the  managers,  constituted  the  conference  com 
mittee,  Mr.  Williams  having  been,  as  is  well  known,  one  of 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  493 

the  principal  promoters  of  the  original  measure.  Mr. 
Schenck  states  upon  a  similar  inquiry  made  in  the  House  as 
to  what  they  had  all  done  on  conference : 

A  compromise  was  made  by  which  a  further  amendment  is 
added  to  this  portion  of  the  bill,  so  that  the  term  of  office  of  the 
heads  of  departments  shall  expire  with  the  term  of  the  President 
who  appointed  them,  allowing  those  heads  of  departments  one 
month  longer,  in  which  in  case  of  death  or  otherwise,  other  heads 
of  departments  can  be  named.  This  is  the  whole  effect  of  the 
proposition  reported  by  the  committee  of  conference. 

And  again: 

Their  terms  of  office  are  limited,  as  they  are  not  now  limited,  by 
law,  so  that  they  expire  with  the  term  of  service  of  the  President 
who  appoints  them  and  one  month  after.  (Congressional  Globe, 
second  session  thirty-ninth  Congress,  page  1340.) 

Not  the  elected  term,  but  "the  term  of  service";  and  if 
removal  by  impeachment  terminates  the  term  of  service,  as 
it  certainly  does,  or  death  by  a  higher  power  equally  termi 
nates  it,  upon  Mr.  Schenck's  view,  in  which  apparently 
Messrs.  Managers  Wilson  and  Williams  concurred,  the 
House  is  presented  as  coming  to  the  same  conclusion  with 
the  Senate.  Nevertheless,  the  whole  grave  matter  left  of 
crime  is  an  impeachment  by  the  House  for  making  the 
removal,  and  a  condemnation  sought  from  the  Senate  upon 
the  same  ground;  and  we  are  brought,  therefore,  to  a  con 
sideration  of  the  meaning  of  the  act,  of  its  constitutionality, 
of  the  right  of  the  President  to  put  its  constitutionality  in 
issue  by  proper  and  peaceful  proceedings,  or  of  his  right  to 
doubt  and  differ  on  the  construction,  and  honestly,  peace 
fully  to  proceed,  as  he  might  feel  himself  best  advised,  to 
learn  what  it  truly  meant. 

And  now  I  may  here  at  once  dispose  of  what  I  may  have 
to  say  definitely  in  answer  to  some  proposition  insisted  upon 
by  the  honorable  manager  [Mr.  Boutwell].  He  has  under- 


494         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

taken  to  disclose  to  you  his  views  of  the  result  of  the  debate 
of  1789,  and  of  the  doctrines  of  the  government  as  there 
developed,  and  has  not  hesitated  to  claim  that  the  limitation 
of  those  doctrines  was  confined  to  appointments  during  the 
recess  of  the  Senate.  Nothing  could  be  less  supported  by 
the  debate  or  by  the  practice  of  the  government.  In  the 
whole  of  that  debate,  from  beginning  to  end,  there  is  not 
found  any  suggestion  of  the  distinction  that  the  honorable 
manager  has  not  hesitated  to  lay  down  in  print  for  your 
guidance  as  its  result.  The  whole  question  was  otherwise, 
whether  or  no  the  power  of  removal  resided  in  the  President 
absolutely.  If  it  did,  why  should  he  not  remove  at  one  time 
as  well  as  at  another?  The  power  of  appointment  was 
restricted  in  the  Constitution  by  a  distinction  between  recess 
and  session.  If,  on  the  other  hand,  the  power  of  removal  was 
administrable  by  Congress,  it  needed  to  provide  for  its  de 
posit  with  the  President,  if  that  was  the  idea,  as  well  in  time 
of  session  as  in  time  of  recess,  because  the  whole  question  and 
action  of  the  separate  exercise  of  the  power  of  removal  from 
the  power  of  appointment  would  arise  when  the  emergency 
of  removal  dictated  instant  action.  We  understand  that 
when  the  removal  is  political,  or  on  the  plan  of  rotation  in 
office,  as  we  call  it,  the  whole  motive  of  the  removal  is  the 
new  appointment. 

The  new  appointment  is  the  first  thought  and  wish.  There 
is  no  desire  to  get  rid  of  the  old  officer  except  for  the  purpose 
of  getting  in  the  new.  And  therefore  the  general  practice  of 
the  government  in  its  mass  of  action,  since  the  time  of  rota 
tion  in  office  began,  is  of  this  political  removal,  which  is  not 
getting  rid  of  the  old  officer  from  any  objection  to  him,  but 
because  his  place  is  wanted  for  the  new.  Hence  all  this 
parade  of  the  action  of  the  government  showing  that  it  has 
been  the  habit  in  those  political  appointments  to  send  in  the 
name  of  the  new  man,  and  by  that  action  put  him  in  the 
place  of  the  old,  serves  no  purpose  of  argument,  and  carries 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  495 

not  a  penny's  weight  on  the  question.  The  form  of  the 
notice  as  in  the  last  one  on  your  table,  the  appointment  of 
General  Schofield,  and  so  from  the  beginning  of  the  office,  is 
"in  place  of  A  B,"  not  "to  be  removed  by  the  Senate,"  but 
"of  A  B,  removed,"  meaning  this:  "I,  as  President,  have  no 
power  to  appoint  unless  there  is  a  vacancy;  I  tell  you  that  I 
have  made  a  vacancy  or  present  to  you  a  case  of  vacancy 
created  by  my  will,  by  removal,  not  death  or  resignation;  and 
I  name  to  you  C  D  to  be  appointed  in  the  place  of  A  B, 
removed."  That  is  the  meaning  of  that  action  of  the  gov 
ernment. 

You  will  observe  that  in  finding  cases  in  the  practice  of  the 
government  where  there  has  been  a  separate  act  of  removal 
during  session,  or  during  recess  either,  we  are  under  two 
necessary  restrictions  as  to  their  abundance  or  frequency, 
which  the  nature  of  the  circumstances  imposes.  The  first  is 
that  in  regard  to  cabinet  officers  you  can  hardly  suppose  an 
instant  in  which  a  removal  can  be  possible,  because  in  the 
language  of  honorable  senators,  you  can  hardly  conceive  of 
the  possibility  of  a  cabinet  officer's  not  resigning  when  it  is 
intimated  to  him  that  his  place  is  wanted;  and,  therefore, 
all  this  tirade  of  exultation  that  we  found  no  case  of  removal 
of  a  cabinet  officer  save  that  of  Timothy  Pickering  rests  upon 
Senator  Sherman's  proposition  and  Senator  Williams's  prop 
osition  that  you  cannot  conceive  of  the  possibility  of  there 
being  a  cabinet  minister  that  would  need  to  be  removed,  and 
the  practice  of  our  government  has  shown  that  these  honor 
able  senators  were  right  in  their  proposition,  and  that  there 
never  have  been,  from  the  foundation  of  the  government  to 
the  present  time,  but  two  cases  where  there  were  cabinet 
ministers  that  on  the  slightest  intimation  of  their  chief  did 
not  resign.  Now,  do  not  urge  on  us  the  paucity  of  the  cases 
of  removal  of  heads  of  departments  as  not  helping  the  prac 
tice  of  the  government  when  that  paucity  rests  upon  retire 
ment  whenever  a  President  desires  it. 


496        SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

Mr.  Pickering,  having  nothing  but  wild  land  for  his  sup 
port  and  a  family  to  sustain,  flatly  told  Mr.  Adams  that  he 
would  not  resign,  because  it  would  not  be  convenient  for  him 
to  make  any  other  arrangements  for  a  living  until  the  end  of 
his  term;  and  the  President,  without  that  consideration  of 
domestic  reasons  which  perhaps  Mr.  Pickering  hoped  would 
obtain  with  him,  told  him  that  he  removed  him,  and  he  did; 
and  he  went,  I  believe,  to  his  wild  land  and  was  imprisoned 
there  by  the  squatters,  and  came  into  very  great  disaster 
from  this  removal.  Mr.  Stanton,  under  the  motives  of  public 
duty,  it  is  said,  takes  the  position  that  for  public  reasons  he 
will  not  resign.  These  are  the  only  two  cases  in  our  govern 
ment  in  which  the  question  has  arisen,  and  in  one  of  them, 
before  the  passage  of  the  civil-tenure  act,  the  Secretary  was 
instantly  removed  by  the  power  of  the  President,  and  in  the 
other  it  was  attempted  after  long  sufferance. 

We  can  find  in  the  history  of  the  government — for  we 
should  hardly  expect  to  escape  the  occurrence  when  we  have 
so  many  officers — instances  enough  of  removal  by  Executive 
authority  during  the  session  of  the  Senate  of  subordinate 
officers  of  the  government  who  derived  their  appointment 
from  the  President,  by  the  advice  and  consent  of  the  Senate, 
and  every  one  of  those  cases  is  pertinent  and  an  instance. 
You  will  observe  in  regard  to  them,  as  I  said  before,  how 
peculiar  must  be  the  situation  of  the  officer  and  office  and 
of  the  President  toward  them  when  this  separate,  independ 
ent,  and  condemnatory  removal  needs  to  take  place.  In  the 
first  place,  there  must  be  some  fault  in  the  conduct  of  the 
officer,  not  necessarily  crime,  and  not  necessarily  neglect  of 
office,  but  some  fault  in  manner  at  least,  as  of  that  collector 
down  in  Alabama,  who,  when  he  was  asked  by  the  Secretary 
of  the  department  how  far  the  Tombigbee  ran  up,  answered 
that  it  did  not  run  up  at  all;  and  he  was  removed 
from  office  for  his  joke  on  the  subject  of  the  Tombigbee 
river  not  running  up,  but,  as  other  rivers  do,  running  down. 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  497 

It  does  not  do  to  have  these  asperities  on  the  part  of  inferior 
officers.  So,  too,  when  the  fault  arises  of  peculation,  of 
deficiency  of  funds,  or  what  not,  the  sureties  know  of  it, 
come  forward  and  say  to  the  officer,  "You  must  resign;  we 
cannot  be  sureties  any  longer  here";  and  in  nine  cases  out 
of  ten,  where  an  occurrence  would  lead  to  removal,  it  is  met 
by  the  resignation  of  the  inferior  officer.  Therefore  the  prac 
tice  of  the  government  can  expect  to  suggest  only  the  pecu 
liar  cases  where  promptitude  and  necessity  of  the  rough 
method  of  removal  are  alike  demanded  from  the  Executive. 
I  will  ask  the  attention  of  this  honorable  court  to  the  cases 
we  have  presented  in  our  proofs,  with  the  page  and  instance 
of  each  removal  during  the  session  of  the  Senate.  That  is 
the  condition  of  this  list — the  whole  of  it: 

Year  Page 

Timothy  Pickering 1800  357 

Thomas  Eastin,  navy  agent  at  Pensacola 1840  569 

Isaac  Henderson,  navy  agent 1864  571 

James  S.  Chambers,  navy  agent 1864  572 

Amos  Binney 1826  573 

John  Thomas 1841  573 

Samuel  F.  Marks 1860  581 

Isaac  V.  Fowler 1860  581 

Mitchell  Steever 1861  581 

I  think  the  honorable  senators  must  give  their  assent  to 
the  propositions  I  have  made  that  in  regard  to  cabinet  offi 
cers  it  is  almost  impossible  to  expect  removal  as  a  separate 
act;  that  political  removals  necessarily  have  for  their  first 
step  the  selection  and  presentation  of  the  new  man  for  whose 
enjoyment  of  office  the  removal  is  to  take  place;  that  in 
regard  to  criminality  and  necessity  requiring  instant  re 
moval  of  subordinate  officers,  resignation  will  then  be  re 
quired  by  their  sureties  or  by  their  sense  of  shame  or  their 
disposition  to  give  the  easiest  issue  to  the  difficulty  in  which 
they  are  placed;  and  when  with  the  circumstances  of  the 

34 


498        SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

matter  reducing  the  dimensions  of  the  possibility  and  the 
frequency  within  these  narrow  limits  I  present  to  you  on 
behalf  of  the  respondent  these  evidences  of  the  action  of  this 
government  during  the  session  of  the  Senate,  I  think  you 
must  be  satisfied  with  the  proposition  assented  to  by  every 
statesman — I  think  assented  to  by  every  debater  on  the 
passage  of  this  civil-tenure  act:  that  the  doctrine  and  the 
action  and  the  practice  of  the  government  had  been  that  the 
President  removed  in  session  or  in  recess,  though  some  dis 
crimination  of  that  kind  was  attempted;  but  the  facts,  the 
arguments,  the  reasons  all  show  that  removal,  if  a  right  and 
if  a  power,  is  not  discriminated  between  session  and  recess. 
Look  at  it  in  regard  to  this  point:  the  Senate  is  in  session, 
and  a  public  officer  is  carrying  on  his  frauds  at  San  Fran 
cisco  or  at  New  York,  or  wheresoever  else,  perhaps  in  Hong 
Kong  or  Liverpool,  and  it  comes  to  the  knowledge  of  the 
Executive;  the  session  of  the  Senate  goes  on;  the  fact  of  his 
knowledge  does  not  put  him  in  possession  of  a  good  man  to 
succeed  him  either  in  his  own  approval  or  in  the  assent  of 
the  new  nominee;  and  if  it  is  necessary  under  our  Constitu 
tion  that  the  consul  at  Hong  Kong  or  at  Liverpool,  or  the 
sub-treasurer  at  New  York,  or  the  master  of  the  mint  at 
San  Francisco,  should  go  on  with  his  frauds  until  you  and 
the  President  can  find  a  man  and  send  him  there  and  get  his 
assent  and  his  qualifications,  very  well.  It  is  not  a  kind  of 
legislation  that  is  adapted  to  the  circumstances  of  the  case 
is  all  that  I  shall  venture  to  suggest.  Whatever  your  positive 
legislation  has  done  or  attempted  to  do,  no  construction  and 
no  practice  of  the  government  while  the  executive  depart 
ment  was  untrammelled  by  this  positive  restriction  has  ever 
shown  a  discrimination  between  session  and  recess.  Of 
course,  the  difference  between  session  and  recess  is  shown  in 
the  political  appointments  where,  the  object  being  the  new 
appointment,  the  commission  goes  out  in  the  recess;  where, 
during  the  session,  the  object  being  the  new  appointment,  it 
must  proceed  through  the  concurrence  of  the  Senate. 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  499 

And  now  that  I  come  to  consider  the  actual  merits  of  the 
proceeding  of  the  President  and  give  a  precise  construction 
to  the  first  section  of  the  bill,  I  need  to  ask  your  attention  to 
a  remarkable  concession  made  by  Mr.  Manager  Butler  in  his 
opening,  as  we  regarded  it,  that  if  the  President,  having  this 
wish  of  removal,  had  accomplished  it  in  a  method  the  pre 
cise  terms  of  which  the  honorable  manager  was  so  good  as 
to  furnish,  then  there  would  have  been  no  occasion  to  have 
impeache.d  him.  It  is  not  then,  after  all,  ihefortiter  in  re  on 
the  part  of  the  President  that  is  complained  of,  but  the 
absence  of  the  suaviter  in  modo-9  and  you,  as  a  court,  upon 
the  honorable  manager's  own  argument,  are  reduced  to  the 
necessity  of  removing  the  President  of  the  United  States  not 
for  the  act,  but  for  the  form  and  style  in  which  it  was  done, 
just  as  the  collector  at  Mobile  was  removed  for  saying  that 
the  river  Tombigbee  did  not  run  up  at  all. 

But  more  definitely  the  honorable  manager  [Mr.  Bout- 
well]  has  laid  down  two  firm  and  strong  propositions — I  will 
ask  your  attention  to  them — bearing  on  the  very  merits  of 
this  case.  We  argue  that  if  this  act  be  unconstitutional  we 
had  a  right  to  obey  the  Constitution,  at  least  in  the  intent 
and  purpose  of  a  peaceful  submission  of  the  matter  to  a 
court,  and  that  our  judgment  on  the  matter,  if  deliberate, 
honest,  and  supported  by  diligent  application  to  the  proper 
sources  of  guidance,  is  entitled  to  support  us  against  an  in- 
crimination.  To  meet  that,  and  to  protect  the  case  against 
the  injury  from  the  exclusion  of  evidence  that  tends  to  that 
effect,  the  honorable  manager  [Mr.  Boutwell]  does  not  hesi 
tate  to  say  that  the  question  of  the  constitutionality  or 
unconstitutionality  of  the  law  does  not  make  the  least  differ 
ence  in  the  world  where  the  point  is  that  an  unconstitutional 
law  has  been  violated,  and  for  a  President  to  violate  an 
unconstitutional  law  is  worthy  of  removal  from  office.  Now, 
mark  the  desperate  result  to  which  the  reasoning  of  the 
honorable  managers,  under  the  pressure  of  our  argument, 


500         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

has  reduced  them.  That  is  their  proposition,  and  the  reason 
for  that  proposition  is  given  in  terms.  If  that  is  not  so;  if 
the  question  of  constitutionality  or  unconstitutionality  in 
fact  is  permitted  to  come  into  your  considerations  of  crime, 
then  you  would  be  punishing  the  President  for  an  error  of 
judgment,  or  releasing  him  or  condemning  him  according  as 
he  happened  to  have  decided  right  or  wrong,  and  that  the 
honorable  manager  tells  us  is  contrary  to  the  first  principles 
of  justice.  Let  us,  before  we  get  through  with  this  matter, 
have  some  definite  meeting  of  minds  on  this  subject  between 
these  honorable  managers  and  ourselves. 

At  page  814,  in  the  argument  of  the  honorable  manager 
[Mr.  Boutwell],  we  are  told  that  "the  crime  of  the  President 
is  not,  either  in  fact  or  as  set  forth  in  the  articles  of  impeach 
ment,  that  he  has  violated  a  constitutional  law;  but  his 
crime  is  that  he  has  violated  a  law,  and  in  his  defence  no 
inquiry  can  be  made  whether  the  law  is  constitutional,"  and 
that  the  Senate  in  determining  innocence  or  guilt  is  to  render 
no  judgment  as  to  the  constitutionality  of  the  act.  I  quote 
the  results  of  his  propositions,  not  the  full  language.  At 
page  815,  this  is  the  idea: 

If  the  President  may  inquire  whether  the  laws  are  constitutional, 
and  execute  those  only  which  he  believes  to  be  so,  then  the  govern- 
ernment  is  the  government  of  one  man.  If  the  Senate  may  in 
quire  and  decide  whether  the  law  is  in  fact  constitutional,  and 
convict  the  President  if  he  has  violated  an  act  believed  to  be  con 
stitutional,  and  acquit  him  if  the  Senate  think  the  law  unconsti 
tutional,  then  the  President  is,  in  fact,  tried  for  his  judgment,  to 
be  acquitted  if,  in  the  opinion  of  the  Senate,  it  was  correct  judg 
ment,  and  convicted  if,  in  the  opinion  of  the  Senate,  his  judgment 
was  erroneous.  This  doctrine  offends  every  principle  of  justice. 

That  doctrine  does  with  us  offend  every  principle  of 
justice,  that  a  President  of  the  United  States  should  be  con 
victed  when  honestly,  with  proper  advice,  peacefully  and 
deliberately,  he  has  sought  to  raise  a  question  between  the 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  501 

Constitution  and  the  law;  and  the  honorable  manager  can 
escape  from  our  argument  on  that  point  in  no  other  mode 
than  by  the  desperate  recourse  of  saying  that  constitutional 
laws  and  unconstitutional  laws  are  all  alike  in  this  country 
of  a  written  Constitution,  and  that  anybody  who  violates  an 
unconstitutional  law  meets  with  some  kind  of  punishment 
or  other.  This  confusion  of  ideas  as  to  a  law  being  valid  for 
any  purpose  that  is  unconstitutional  I  have  already  suffi 
ciently  exposed  in  a  general  argument.  At  page  815  he 
says: 

It  is  not  the  right  of  any  senator  in  this  trial  to  be  governed  by 
any  opinion  he  may  entertain  of  the  constitutionality  of  the  law  in 
question. 

You  may  all  of  you  think  the  law  is  unconstitutional,  and 
yet  you  have  got  to  remove  the  President!  "It  has  not  been 
annulled  by  the  Supreme  Court."  And  you  may  simply 
inquire  whether  he  has  violated  the  law. 

That  is  pretty  hard  on  us  that  we  cannot  even  go  to  the 
Supreme  Court  to  find  out  whether  it  is  unconstitutional, 
and  we  cannot  regard  it  on  our  own  oath  of  office  as  uncon 
stitutional  and  proceed  to  maintain  the  obligation  to  sustain 
the  Constitution,  and  you  cannot  look  into  the  matter  at  all, 
but  the  unconstitutional  law  must  be  upheld! 

Nor  can  the  President  prove  or  plead  the  motive  by  which  he 
professes  to  have  been  governed  in  his  violation  of  the  laws  of  the 
country. 

What  is  the  reason  for  that?  He  has  taken  an  oath  to 
preserve  the  Constitution,  and  therefore  he  cannot  say  that 
he  acted  under  the  Constitution  and  not  under  the  law.  His 
oath  strikes  him  so  that  he  cannot  maintain  the  Constitu 
tion,  and  the  Constitution  cannot  protect  him. 

A  man  who  breaks  an  unconstitutional  law  on  the  ground 
that  it  is  unconstitutional  and  that  he  has  a  right  to  break 
it,  is  "a  defiant  usurper." 


502        SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

Those  are  the  propositions,  and  I  think  the  honorable 
manager  is  logical;  but  the  difficulty  is,  that  his  logic  drives 
him  to  an  absurdity  which,  instead  of  rejecting,  he  adopts — 
a  fault  in  reasoning  which  certainly  we  should  not  expect. 

On  the  question  of  construction  of  the  law,  what  are  the 
views  of  the  honorable  managers  as  to  the  point  of  guilt  or 
innocence?  We  have  claimed  that  if  the  President  in  good 
faith  construed  this  law  as  not  including  Mr.  Stanton  under 
its  protection,  and  he  went  on  upon  that  opinion,  he  cannot 
be  found  guilty.  The  honorable  manager  [Mr.  Boutwell],  at 
page  839,  takes  up  this  question  and  disposes  of  it  in  this 
very  peculiar  manner: 

If  a  law — 

I  ask  your  attention  to  this: 

If  a  law  passed  by  Congress  be  equivocal  or  ambiguous  in  its 
terms,  the  Executive,  being  called  upon  to  administer  it,  may 
apply  his  own  best  judgment  to  the  difficulties  before  him.  or  he 
may  seek  counsel  of  his  advisers  or  other  persons;  and,  acting 
thereupon  without  evil  intent  or  purpose,  he  would  be  fully  justi 
fied— 

We  never  contended  for  anything  stronger  than  that — 

he  would  be  fully  justified,  and  upon  no  principle  of  right  could 
he  be  held  to  answer  as  for  a  misdemeanor  in  office. 

Logic  is  a  good  thing,  an  excellent  thing;  it  operates  upon 
the  mind  without  altogether  yielding  to  the  bias  of  feeling; 
and  as  we  press  an  argument,  however  narrow  it  may  be, 
if  it  be  logical,  the  honorable  managers  seem  obliged  to  bend 
to  it,  and  in  both  cases  have  thrown  away  their  accusation. 
Tell  me,  what  more  do  we  need  than  this,  an  ambiguous  and 
equivocal  law  which  the  President  was  called  on  to  act 
under,  and  might,  as  we  tried  to  prove,  "seek  counsel  from 
his  official  advisers  or  other  proper  persons,  and  acting  there 
upon  without  evil  intent  or  purpose  he  would  be  fully  justi- 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  503 

fied,  and  upon  no  principle  of  right  could  he  be  held  to 
answer  as  for  a  misdemeanor  in  office?"  And  what  is  the 
answer  which  the  honorable  managers  make  to  this  logical 
proposition?  Why,  that  this  act  is  not  of  that  sort;  it  is  as 
plain  as  the  nose  on  a  man's  face,  and  it  was  nothing  but 
violent  resistance  of  light  that  led  anybody  outside  of  this 
Senate  to  doubt  what  it  meant!  The  honorable  manager 
who  follows  me  [Mr.  Bingham]  will  have  an  opportunity  to 
correct  me  in  my  statements  of  their  propositions,  and  to 
furnish  an  adequate  answer,  I  doubt  not,  to  the  views  I  have 
had  the  honor  now  to  present. 

And  now  take  the  act  itself,  which  is  found  at  page  430  of 
the  edition  of  the  statutes  I  have  before  me.  It  is  provided — 

That  every  person  holding  any  civil  office,  to  which  he  has  been 
appointed  by  and  with  the  advice  and  consent  of  the  Senate,  and 
every  person  who  shall  hereafter  be  appointed  to  any  such  office, 
and  shall  become  duly  qualified  to  act  therein,  is  and  shall  be  en 
titled  to  hold  such  office  until  a  successor  shall  have  been  in  like 
manner  appointed  and  duly  qualified,  except  as  herein  otherwise 
provided. 

Then  the  "provision  otherwise"  is: 

Provided,  That  the  Secretaries  of  State,  of  the  Treasury,  of  War, 
of  the  Navy,  and  of  the  Interior,  the  Postmaster  General,  and  the 
Attorney  General,  shall  hold  their  offices  respectively  for  and  dur 
ing  the  term  of  the  President  by  whom  they  may  have  been  ap 
pointed,  and  for  one  month  thereafter,  subject  to  removal  by  and 
with  the  advice  and  consent  of  the  Senate. 

That  is  the  operative  section  of  this  act  of  erecting  and 
limiting  the  new  arrangement  of  offices.  The  section  of 
incrimination,  so  far  as  it  relates  to  removal,  I  will  read, 
omitting  all  that  relates  to  any  other  matter;  the  sixth 
section: 

That  every  removal  .  .  .  contrary  to  the  provisions  of 
this  act  ...  shall  be  deemed,  and  is  hereby  declared  to  be,  a 
high  misdemeanor — 


504         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

I  alter  the  plural  to  singular — 

And  upon  trial  and  conviction  thereof,  every  person  guilty 
thereof  shall  be  punished  by  a  fine  not  exceeding  $10,000,  or  by 
imprisonment  not  exceeding  five  years,  or  both  said  punishments, 
in  the  discretion  of  the  court. 

You  will  observe  that  this  act  does  not  affix  a  penalty  to 
anything  but  a  "removal,"  an  accomplished  removal.  Acts 
of  a  penal  nature  are  to  be  construed  strictly ;  and  yet  when 
ever  we  ask  that  necessary  protection  of  the  liberty  and  of 
the  property  and  of  the  life  of  a  citizen  of  the  United  States 
under  a  penal  statute,  we  are  told  that  we  are  doing  some 
thing  extraordinary  for  a  lawyer  in  behalf  of  his  client.  All 
principles,  it  seems,  are  to  be  changed  when  you  have  a 
President  for  a  defendant;  all  the  law  retires,  and  will  and 
object  and  politics  assume  their  complete  predominance  and 
sway,  and  everything  of  law,  of  evidence,  and  of  justice  is 
narrow  and  not  enlarged.  That  may  be.  All  I  can  say  is 
that  if  the  President  had  been  indicted  under  this  act,  or 
should  hereafter  be  indicted  under  this  act,  then  the  law  of 
the  land  would  apply  to  his  case  as  usually  administered,  and 
if  he  has  not  removed  Mr.  Stanton  he  cannot  be  punished  for 
having  done  it.  You  might  have  punished  an  attempt  to 
remove.  See  what  you  have  done  in  regard  to  appointments : 

Every  appointment  or  employment  made,  had,  or  exercised 
contrary  to  the  provisions  of  this  act,  and  the  making,  signing, 
sealing,  countersigning,  or  issuing  of  any  commission  or  letter  of 
authority  for,  or  in  respect  to  any  such  appointment  or  employ 
ment,  shall  be  deemed,  and  is  hereby  declared  to  be,  a  high  mis 
demeanor. 

There  you  have  made  not  only  an  appointment,  but  an 
attempt  on  movement  of  the  pen  toward  an  appointment  a 
crime,  and  you  will  punish  it,  I  suppose,  some  day  or  other. 
But  removal  stands  on  act  and  fact.  Now,  what  does  the 
article  charge  in  this  behalf?  for  I  believe  as  yet  it  has  not 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  505 

been  claimed  that  it  is  too  narrow  to  insist  that  the  crime  as 
charged  in  the  article  shall  be  the  one  you  are  to  try.  "Re 
moval"  is  not  charged  in  the  articles  anywhere;  the  allega 
tion  is  that  Andrew  Johnson  did  unlawfully  and  in  violation 
of  the  Constitution  "issue  an  order  in  writing  for  the  removal 
of  Edwin  M.  Stanton,  with  intent  to  violate"  the  civil-tenure 
act,  and  "with  intent  to  remove  him,  the  Senate  being  in 
session."  If  you  had  had  a  section  of  this  statute  that  said 
"any  removal,  or  the  signing  of  any  letter,  or  order,  or  paper, 
or  mandate  of  removal,  shall  be  a  crime,"  then  you  would 
have  had  an  indictment  and  a  crime  before  you;  but  you 
have  neither  crime  nor  indictment,  as  appears  from  this  first 
article.  And  yet  it  may  be  said  that  in  so  small  a  matter  as 
the  question  of  the  removal  of  a  President  it  does  not  do  to 
insist  upon  the  usual  rules  of  construction  of  a  criminal  law. 
I  understand  the  proposition  to  be  this :  that  here  is  a  crimi 
nal  law  which  has  been  violated;  that  by  the  law  of  the  land 
it  has  been  violated,  so  that  indictment  could  inculpate,  ver 
dict  would  find  guilt,  and  sentence  would  follow  at  law;  and 
that  thereupon,  upon  that  predicament  of  guiltiness,  the 
President  of  the  United  States  is  exposed  to  this  peculiar 
process  of  impeachment;  and  if  I  show  that  your  law  does 
not  make  punishable  an  attempt  to  remove,  or  a  letter  of 
removal,  and  that  your  article  does  not  charge  a  removal, 
and  that  is  good  at  law,  then  it  is  good  against  impeachment, 
or  else  you  must  come  back  to  the  proposition  that  you  do 
not  need  a  legal  crime. 

So  much  for  the  law.  What  is  the  true  attitude  of  Mr. 
Stanton  and  of  the  President  of  the  United  States  towards 
this  office  and  this  officer  at  the  time  of  the  alleged  infraction 
of  the  law?  Mr.  Stanton  held  a  perfectly  good  title  to  that 
office  by  the  commission  of  a  President  of  the  United  States 
to  hold  it,  according  to  the  terms  of  the  commission,  "during 
the  pleasure  of  the  President  for  the  time  being."  That  is 
the  language  of  the  commission.  He  held  a  good  title  to  the 


506         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

office.  A  quo  warranto  moved  against  him  while  he  held  that 
commission  unrevoked,  unannulled,  and  undetermined  would 
have  been  answered  by  the  production  of  the  commission. 
"I  hold  this  office  during  the  pleasure  of  the  President  of  the 
United  States  for  the  time  being,  and  I  have  not  been  re 
moved  by  the  President  of  the  United  States."  That  was 
the  only  title  he  held  up  to  the  passage  of  the  civil-tenure 
act.  By  the  passage  of  the  civil-tenure  act  it  is  said  that  a 
statutory  title  was  vested  in  him  not  proceeding  from  the 
executive  power  of  the  United  States  at  all,  not  commis 
sioned  by  the  Executive  of  the  United  States  at  all,  not  to 
be  found,  ascertained,  or  delegated  by  the  Executive  of  the 
United  States  at  all,  but  a  statutory  title  superadded  to  his 
title  from  the  executive  authority  which  he  held  during 
pleasure,  which  gave  him  a  durable  office  determinable  only 
one  month  after  the  expiration  of  some  term  of  years  or 
other. 

We  are  not  now  discussing  the  question  whether  he  is 
within  it  or  not.  That  being  so,  the  first  question  to  which  I 
ask  your  attention  is  this,  that  the  act  is  wholly  unconsti 
tutional  and  inoperative  in  conferring  upon  Mr.  Stanton  or 
anybody  else  a  durable  office  to  which  he  has  never  been 
appointed.  Appointment  to  all  office  proceeds  from  the 
President  of  the  United  States,  or  such  heads  of  department 
or  such  courts  of  law  as  your  legislation  may  repose  it  in. 
You  cannot  administer  appointment  to  office  yourselves,  for 
what  the  Constitution  requires  the  President  to  have  con 
trol  of  you  cannot  confer  anywhere  else.  The  appointment 
of  Secretary  of  War  is  one  which  cannot  be  taken  from  the 
President  and  conferred  upon  the  courts  of  law  or  the  heads 
of  department.  Whatever  may  be  the  action  of  Congress 
limiting  or  contriving  the  office,  as  you  please,  the  office  itself 
is  conferable  only  by  the  action  of  the  Executive.  And  when 
Mr.  Stanton  holds  or  anybody  else  holds  an  office  during 
pleasure,  which  he  has  received  by  commission  and  authority 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  507 

of  the  President  of  the  United  States,  a  sufficient  title  to, 
you  can  no  more  confer  upon  him  by  your  authority  and 
appointment  a  title  durable  and  in  invitum  as  against  the 
President  of  the  United  States,  you  can  no  more  confer  it 
upon  him  because  he  happens  to  be  holding  an  office  during 
pleasure  than  you  could  if  he  was  out  of  office  altogether. 
I  challenge  contradiction  from  the  lawyers  who  oppose  us 
and  from  the  judgment  of  honorable  and  intelligent  lawyers 
here.  Where  are  you  going  to  carry  this  doctrine  of  legisla 
tive  appointment  to  office  if  you  can  carry  it  to  find  a  man 
whom  the  President  has  never  asked  to  hold  an  office  except 
from  day  to  day  and  can  enact  him  into  a  durable  office  for 
life?  You  may  determine  tenures  if  you  please;  I  am  not 
now  discussing  that;  you  may  determine  tenures  for  life;  but 
you  cannot  enact  people  into  tenures  for  life.  The  President 
must  appoint;  and  his  discretion  and  his  judgment  in  ap 
pointing  to  an  office  for  life  are  very  different  from  his  dis 
cretion  and  his  appointing  to  an  office  during  his  pleasure, 
which  he  can  change  at  will.  Now  you  will  sweep  all  the 
offices  of  the  country  not  only  into  the  Senate  but  into  Con 
gress  if  you  adopt  this  principle  of  enacting  people  into 
office;  and  if,  upon  the  peg  that  there  is  an  office  at  sufferance 
or  at  will,  you  can  convert  it  in  favor  of  the  holder  by  an  act 
of  Congress  into  an  estate  for  life  or  for  years,  you  will  ap 
point  to  office;  and  of  that  there  can  be  no  doubt. 

The  next  question,  and  the  only  question,  of  constitu 
tionality  or  construction  (for  the  general  question  of  the 
constitutional  power  to  restrict  appointments  I  shall  not 
further  trouble  the  Senate  with)  is,  whether  the  Secretary 
of  War  is  within  the  first  section.  The  office  of  the  Secretary 
of  War  is  within  the  first  section  undoubtedly.  The  ques 
tion,  therefore,  is  whether  the  provisions  concerning  the 
office  of  Secretary  of  War  applicable  to  that  office  are  in  their 
terms,  giving  them  full  force  and  effect,  such  as  to  hold  Mr. 
Stanton  in  that  office  against  the  will  of  the  President  by 


508         SPEECHES  OP  WILLIAM  MAXWELL  EVAETS 

the  statutory  term  that  is  applicable  to  that  office,  and  is  or 
is  not  applied  to  him. 

The  argument  that  if  Mr.  Stanton  is  not  within  the  pro 
viso  then  he  is  within  the  body  of  the  section  stumbles  over 
this  transparent  and  very  obvious,  as  we  suppose,  fallacy; 
the  question  of  the  law  is  whether  the  office  of  Secretary  of 
War  is  within  the  proviso  or  not.  You  have  not  made  a  law 
about  Mr.  Stanton  by  name.  The  question,  then,  whether 
he  is  within  one  or  the  other  terms  of  the  alternative,  is 
whether  the  office  of  Secretary  of  War  is  within  the  section 
or  within  the  proviso;  and  will  anybody  doubt  about  that? 
It  is  on  the  same  footing  with  the  other  secretaryships;  it  is 
on  the  same  footing  as  an  office  with  every  other  department. 
The  question  whether  the  office  of  Mr.  Stanton  or  the  office 
of  Mr.  Browning  is  within  one  or  the  other  alternative  of  the 
section  is  not  a  question  of  construction  of  law,  but  a  ques 
tion  of  whether  the  facts  of  the  tenure  and  holding  of  the 
actual  incumbency  of  the  one  or  the  other  bring  him  within 
the  proviso.  If  he  is  not  brought  within  the  proviso,  his 
office  being  there,  the  fact  that  he  is  not  in  does  not  carry 
his  office  back  into  the  first  part,  because  his  office  would  be 
back  there  for  the  future  as  well  as  for  the  past  and  for  the 
present. 

It  is  a  statute  made  for  permanent  endurance,  and  the 
office  of  Secretary  of  War,  now  and  forever,  as  long  as  the 
statute  remains  upon  the  book,  is  disposed  of  one  way  or  the 
other  within  the  first  part  or  within  the  proviso.  And  yet 
we  have  been  entertained,  in  public  discussions  as  well  as  in 
arguments  here,  with  what  is  supposed  to  be  a  sort  of  trium 
phant  refutation,  that  Mr.  Stanton's  office  in  his  actual 
incumbency  is  not  protected  by  the  proviso;  that  then  his 
office  is  carried  back  under  the  body  of  the  section.  There 
is  no  doubt  about  the  office  being  under  the  proviso.  It 
says  so: 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  509 

Provided,  That  the  Secretaries  of  State,  of  the  Treasury,  of  War, 
of  the  Navy,  and  of  the  Interior,  the  Postmaster  General,  and  the 
Attorney  General,  shall  hold  their  offices  respectively,  etc. 

That  does  not  mean  the  men;  it  means  the  offices  shall 
have  that  tenure.  Having  got  along  so  far  that  this  office  of 
Secretary  of  War,  like  the  office  of  Secretary  of  the  Interior, 
must  always  remain  under  that  proviso,  and  is  never  gov 
ernable  or  to  be  governed  by  the  body  of  the  section,  we  have 
but  one  other  consideration,  and  that  is  whether  the  proviso, 
which  is  the  only  part  of  the  section  that  can  operate  upon 
the  office  of  Secretary  of  War,  so  operates  upon  that  office 
as  to  cover  Mr.  Stanton  in  a  durable  tenure  for  the  future; 
and  that  turns  upon  the  question  whether  the  durability  of 
tenure  provided  as  a  general  rule  for  the  office  is  in  the  terms 
of  its  limitation  such  as  to  carry  him  forward,  or  whether  its 
bound  has  already  been  reached  and  he  is  out  of  it.  That 
is  the  question  of  fact  in  the  construction  of  the  proviso.  He 
either  stays  in  the  proviso  or  he  drops  out  of  the  proviso;  and 
if  he  personally  drops  out  of  the  proviso  in  his  present  incum 
bency  he  cannot  get  back  into  the  operative  clause,  because 
he  cannot  get  back  there  without  carrying  his  office  there, 
and  his  office  never  can  get  back. 

Is  it  not  true  that  this  proviso  provides  a  different  tenure 
for  the  cabinet  officers  from  what  the  first  and  operative  part 
of  the  section  provides?  If  this  office  or  this  officer  goes  back, 
this  very  incumbent  goes  back;  he  gets  a  tenure  that  will  last 
forever,  that  is,  until  the  Senate  consents  to  his  removal. 
How  absurd  a  result  that  is,  to  give  to  this  poor  President 
control  of  his  cabinet,  that  those  he  appointed  himself,  if  he 
should  happen  to  be  re-elected,  he  could  get  rid  of  in  a  month, 
and  those  that  Mr.  Lincoln  appointed  for  him  from  the 
beginning,  and  before  he  had  any  choice  in  it,  he  must  hold 
on  to  forever,  till  you  consent  that  they  shall  go  out;  that 
those  in  regard  to  whom  he  had  the  choice  of  nomination  he 
may  by  the  expiration  of  the  statutory  term  be  freed  from, 


510         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

but  those  that  he  had  nothing  to  do  with  the  appointment  of 
shall  last  forever,  till  you  consent  to  release  him  specifically 
from  them.  That  is  the  necessary  result  of  carrying  him 
personally  back,  and  Mr.  Stanton  would  hold  under  the  next 
President — if  any  of  you  can  name  him,  I  will  supply  in  the 
argument  his  name — I  can  name  several;  whether  it  is  the 
President  that  is  to  come  in  by  removal  from  office,  or  the 
President  by  the  election  of  the  people  in  the  autumn.  Either 
way  he  would  have  a  choice  to  relieve  himself  from  the  Secre 
taries.  No;  I  think  they  would  all  then  be  in  a  shape  for 
him,  all  having  been  appointed  by  somebody  that  had  pre 
ceded  him,  and  he  would  not  have  any  chance  at  all. 

Such  absurdity,  either  in  reasoning  or  practical  result,  can 
never  be  countenanced  by  the  judgment  of  this  court.  If 
the  office  of  the  Secretary  of  War  is  within  the  proviso,  and 
it  certainly  is,  as  it  is  not  contended  that  the  other  Secreta 
ries  are  not  in  their  offices  within  it,  then  Mr.  Stanton  is  or 
is  not  protected  by  the  proviso.  If  he  is  not  protected  by  the 
proviso  his  case  is  not  provided  for.  Now,  suppose  this  pro 
viso  had  contained  a  second  proviso  following  after  the  first, 
"and  provided  further,  that  the  persons  now  holding  the 
offices  of  Secretary  of  War,  etc.,  who  were  appointed  and 
commissioned  by  Mr.  Lincoln,  shall  not  be  deemed  within 
the  above  proviso,  which  regulates  the  tenure  of  those 
offices,"  that  would  not  have  carried  the  offices  back  under 
the  new  tenure  of  the  operative  section,  but  simply  have 
provided  that,  the  offices  being  governed  by  the  proviso,  the 
incumbents,  under  the  particular  circumstances  of  their  case, 
should  not  be  even  protected  by  the  proviso;  and  this  is  the 
necessary  construction  of  the  act. 

If  this  be  the  real  construction,  there  is  the  end  of  the 
crime.  If  the  construction  be  equivocal  or  ambiguous,  the 
honorable  manager  [Mr.  Boutwell]  says  it  would  be  abhor 
rent  to  every  sense  of  justice  to  punish  the  President  for 
having  erred  in  its  construction;  but  being  so  plain  a  case 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  511 

that  nobody  can  say  two  words  on  the  one  side  or  the  other 
of  it,  it  is  mere  assumption  to  say  that  there  is  a  doubt  or 
difficulty,  and  that  an  argument  is  necessary.  Well,  we  cer 
tainly  have  belied  on  the  one  side  and  the  other  the  proposi 
tion  of  this  absolute  plainness,  for  we  have  spent  a  great 
many  words  on  this  subject  on  the  one  side  and  the  other. 
This  being  so,  let  us  consider  what  the  President  did;  and 
assuming  that  the  statute  covers  Mr.  Stanton's  case,  assum 
ing  that  the  removal  of  Mr.  Stanton  is  prohibited  by  it  under 
the  penalties,  let  us  see  what  the  President  did. 

I  have  said  to  you  that  Mr.  Stanton  had  a  title  to  this 
office  dependent  on  the  President's  pleasure.  He  claimed,  or 
others  claimed  for  him,  that  he  had  a  tenure  dependent  on 
the  statute.  The  question  of  dependence  on  the  statute  was 
a  question  to  be  mooted  and  determined  as  a  novel  one;  the 
question  of  tenure  by  appointment  was  indubitable;  and  the 
President  proposed  to  put  himself  in  the  attitude  of  reducing 
the  tenure  of  Mr.  Stanton  to  his  statutory  tenure  at  least. 
He  therefore  issues  a  paper  which  is  a  revocation  of  his  com 
mission,  a  recall  of  his  office,  as  it  depends  on  presidential 
appointment.  Without  that  no  question  ever  could  be  raised 
by  any  person  upon  the  statutory  tenure,  because  the  presi 
dential  tenure  would  be  an  adequate  answer  to  a  quo  war- 
ranto.  The  President  then,  peaceably  and  in  writing,  issued 
a  paper  which  is  served  upon  Mr.  Stanton,  saying,  in  effect, 
"I,  the  President  of  the  United  States,  by  such  authority  as 
I  possess,  relieve  or  remove  you  from  the  office  of  Secretary 
of  War";  and  that  that  recalled  and  terminated  the  com 
mission  and  the  title  that  was  derived  from  presidential 
appointment  nobody  can  deny. 

Did  the  President  proceed  further?  When  Mr.  Stanton, 
as  he  might  reasonably  have  expected;  when,  as  upon  the 
evidence  he  did  probably  calculate,  instead  of  adhering  to 
his  opinion  that  the  tenure-of -office  act  was  unconstitu 
tional  and  that  the  tenure-of-office  act  did  not  include  his 


512         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

title,  refused  to  yield  the  only  title  that  on  Mr.  Stanton's 
profession  he  held,  to  wit,  the  presidential  appointment,  to 
this  recall,  did  the  President  then  interpose  force  to  termi 
nate  his  statutory  title,  or  did  he,  having  thus  reduced  him 
to  the  condition  of  his  statutory  title  then  propose  and  then 
act  either  in  submission  to  the  power  which  Mr.  Stanton  had 
over  him,  or  did  he  wish  to  have  the  question  of  the  statutory 
title  determined  at  law?  It  is  enough  to  say  that  he  did  not 
do  anything  in  the  way  of  force;  that  he  expected  in  advance, 
as  appears  by  his  statements  to  General  Sherman,  that  Mr. 
Stanton  would  yield  the  office.  Why  should  Mr.  Stanton 
not  yield  it?  The  grounds  on  which  he  had  put  himself  in 
August  were  that  his  duty  required  him  to  hold  the  office 
until  Congress  met;  that  is  to  hold  it  so  that  the  presidential 
appointment  could  not  take  effect  without  your  concurrence. 
Congress  had  met  and  was  in  session,  and  this  "public  duty" 
of  Mr.  Stanton,  on  his  own  statement  had  expired.  Mr. 
Stanton  had  told  him  that  the  act  was  unconstitutional  and 
had  aided  in  writing  the  message  that  so  disclosed  the  presi 
dential  opinion  to  you. 

He  had  concurred  in  the  opinion  that  he  was  not  within 
the  act.  His  retirement  on  this  order  would  be  in  submis 
sion  to  these  views,  if  not  in  submission  to  the  views  Senators 
here  had  expressed  that  no  man  could  be  imagined  who 
would  refuse  to  give  up  office  in  the  cabinet  when  desired  by 
the  President;  but  if  that  predicament  was  excusable  while 
this  Senate  was  not  in  session  to  prevent  a  bad  appointment, 
if  that  was  feared,  how  could  it  be  a  reason  when  this  Senate 
was  in  session?  Mr.  Stanton  having  stated  to  General 
Thomas  on  the  first  presentation  of  his  credential  that  he 
wanted  to  know  whether  he  desired  him  to  vacate  at  once, 
or  would  give  him  time  to  remove  his  private  papers,  and 
that  having  been  reported  to  the  President,  the  President 
regarded  it  as  all  settled,  and  so  informed  his  cabinet,  as  you 
have  permitted  to  be  given  in  evidence.  After  that,  after 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  513 

the  21st,  what  act  is  charged  in  this  article?  Up  to  and 
through  the  21st  and  the  written  order  of  removal  and  its 
delivery  to  Mr.  Stanton,  and  the  repose  of  the  President 
upon  that  posture  in  which  Mr.  Stanton  left  it,  what  was 
done  by  the  President  about  that  office?  Nothing  whatever. 
There  was  a  desire,  an  effort  to  seize  upon  a  movement  made 
by  Mr.  Stanton,  based  upon  an  affidavit,  not  that  he  had 
removed  from  office,  but  sworn  to  on  the  21st,  and  again  on 
the  early  morning  of  the  22d,  that  he  was  still  in  the  office 
and  held  it  against  General  Thomas,  and  instantly  the  Presi 
dent  said,  "Very  well,  the  matter  is  in  Court." 

It  might  have  gone  into  Court  on  the  trial  of  an  indictment 
against  Thomas ;  but  a  speedier  method  was  arrived  at  in  the 
consultations  of  the  President  with  his  counsel,  to  have  a 
habeas  corpus  carried  forward  before  the  Supreme  Court,  and 
jump  at  that.  Then  Mr.  Chief  Justice  Carter,  who,  I  take 
it,  all  who  know  him  understand  to  be  one  who  sees  as  far 
into  a  millstone  as  most  people,  put  that  cause  out  of  his 
Court  by  its  own  weight  and  the  habeas  corpus  fell  with  it. 
That  is  all  that  is  proved  and  all  that  is  done.  I  submit  to 
you,  therefore,  that  the  case  of  a  resistance  or  violation  of 
law  does  not  at  all  arise.  We  do  not  even  get  to  the  position 
of  whether  a  formal  and  peaceable  violation,  for  the  purpose 
of  raising  the  question  before  the  Supreme  Court,  was  allow 
able.  A  revocation  of  the  presidential  title  of  Stanton  was 
allowable;  a  resistance  of  the  statutory  title  was  not  at 
tempted;  and  the  matter  stood  precisely  as  it  would  stand 
if  a  person  was  in  the  habit  of  cutting  wood  on  your  lot,  and 
claimed  a  title  to  it,  and  meant  to  have  a  right  to  cut  wood 
there,  and  before  you  went  to  law  with  him  to  determine  the 
right  in  an  action  of  trespass  you  were  careful  to  withdraw  a 
license  terminable  at  will  which  you  had  given  him  and  under 
which  he  was  cutting  wood.  Withdraw  your  license  before 
you  bring  your  action  of  trespass  or  you  will  be  beaten  in  it. 
Withdraw  your  license,  and  then  he  cuts  upon  his  claim  of 

35 


514         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

right,  and  your  action  of  trespass  has  its  course  and  deter 
mines  title.  That  was  the  situation. 

All  that  is  said  about  the  right  to  violate  unconstitutional 
laws  never  can  have  the  footing  for  consideration,  where  all 
that  is  done  by  anybody  is  to  put  upon  paper  the  case  out 
of  which,  as  an  instance,  the  judgment  of  a  Court  can  be 
called  for  as  to  a  violation  or  no  violation.  If  there  must  be 
an  intervention  of  force,  then  a  law  may  be  said  to  be  vio 
lated  and  an  offender  must  suffer,  accordingly  as  it  shall 
prove  to  be  constitutional  or  unconstitutional.  But  where 
there  is  a  Constitution  as  the  predominant  law,  the  statute 
as  an  inferior  law,  and  an  executive  mandate  is  issued  by  the 
President  in  pursuance  of  either  one  law  or  the  other,  accord 
ing  to  which  is  in  force,  for  they  both  cannot  be,  we  suppose, 
then  he  commits  no  violation  of  the  law  in  thus  presenting 
for  consideration  and  determination  the  case. 

We  must,  then,  come  either  to  intent,  purpose,  motive, 
some  force  prepared,  meditated,  threatened,  or  applied,  or 
some  evil  invasion  of  the  actual  working  of  the  department 
of  the  Government  in  order  to  give  substance  to  this  allega 
tion  of  fault.  No  such  fact,  no  such  intent,  no  such  purpose 
is  shown.  We  are  prevented  from  showing  the  attendant 
views,  information,  and  purpose  upon  which  the  President 
proceeded;  and  if  so,  it  must  be  upon  the  ground  that  views, 
intent,  and  purpose  do  not  qualify  the  act.  Very  well,  then, 
carry  it  through  so;  let  the  managers  be  held  to  the  narrow 
ness  of  their  charges  when  they  ask  for  judgment  as  they 
are  when  they  exclude  testimony,  and  let  it  be  determined 
upon  their  reasoning  on  an  article  framed  upon  this  plan, 
"that  the  President  of  the  United  States,  well  knowing  the 
act  to  be  unconstitutional,  as  in  fact  it  is,  undertook  to  make 
an  appointment  contrary  to  its  provisions  and  conformable 
to  the  Constitution  of  the  United  States,  with  the  intent  that 
the  Constitution  of  the  United  States  should  prevail  in  regard 
to  the  office  in  overthrow  of  the  authority  of  the  act  of  Con- 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  515 

gress,  and  thereupon  and  thereby,  with  an  intent  against 
which  there  can  be  no  presumption,  for  he  is  presumed  to 
have  intended  to  do  what  he  did  do,  we  ask  that  for  that 
purpose  of  obeying  the  Constitution  rather  than  an  invalid 
law  he  should  be  removed  from  office!" 

And  this  absurdity  is  no  greater  than — for  it  is  but  a  state 
ment  of — the  propositions  of  law  and  of  fact  to  which  the 
honorable  managers  have  reduced  themselves  in  their  theo 
ries  of  this  cause,  which  exclude  all  evidence  of  intent  or 
purpose  and  of  effect  and  conduct,  and  take  hold  upon  mere 
personal  infraction  of  a  statute  of  the  United  States,  grant 
ing,  for  the  purpose  of  argument,  that  it  may  be  unconstitu 
tional,  and  insisting  that,  under  your  judgments,  it  shall  not 
make  any  difference  whether  it  is  unconstitutional  or  not.  If 
that  be  so,  then  we  have  a  right  to  claim  that  it  is  unconsti 
tutional  for  the  purposes  of  your  judgment;  and  they  agree 
that  if  you  cannot  so  treat  it  and  find  us  guilty,  then  it  would 
be  against  the  first  principles  of  justice  to  punish  us  for  an 
erroneous  or  mistaken  opinion,  concerning  constitutionality 

Now,  the  review  of  the  evidence  I  do  not  purpose  to  weary 
you  with.  It  all  lies  within  the  grasp  of  a  handful  on  either 
side,  and  it  will  astonish  you,  if  you  have  not  already  perused 
the  record,  how  much  of  it  depends  upon  the  arguments  or 
the  debates  of  counsel,  how  little  upon  what  is  included  in  the 
testimony.  Already  your  attention  has  been  turned  to  the 
simplicity  and  folly,  perhaps,  of  the  conduct  of  General 
Thomas;  already  your  attention  must  have  fixed  itself  upon 
the  fact  that  to  prove  this  threatened  coup  d'etat  to  over 
throw  the  Government  of  the  United  States  and  control  the 
Treasury  and  the  War  Department  you  had  to  go  to  Dela 
ware  to  prove  a  statement  by  Mr.  Karsner  that  twenty  days 
afterward  Thomas  said  he  would  kick  Stanton  out.  That  is 
the  fact ;  there  is  no  getting  over  it.  A  coup  d'Stat  in  Wash'ng- 
ton  on  the  21st  of  February,  meditated,  prepared,  planned  by 
military  force,  is  proved  by  Karsner,  brought  from  Delaware 


516         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

to  say  that  on  the  9th  of  March,  in  the  east  room,  Genera] 
Thomas  said  he  meant  to  kick  Stanton  out.  That  phrase, 
disrespectful  as  it  is,  and  undoubtedly  intimating  force,  is 
rather  of  a  personal  than  of  a  national  act.  I  submit 
that  criticism  is  well  founded.  I  think  so.  It  comes  up 
to  a  breach  of  the  peace,  provided  it  has  been  perpetrated. 
But  it  does  not  come  up  to  that  kind  of  proceeding 
by  which  Louis  Napoleon  seized  the  liberties  of  the 
French  republic;  and  we  expected,  under  the  heats  under 
which  this  impeachment  was  found,  that  we  should  find 
something  of  that  kind.  The  managers  do  not  neglect  little 
pieces  of  evidence,  as  is  shown  by  their  production  of  Mr. 
Karsner;  and  if  they  find  this  needle  in  a  haystack  and 
produce  it  as  the  sharp  point  of  their  case,  there  is  nothing 
else,  there  is  no  bristling  of  bayonets  under  the  hay-mow, 
you  may  be  sure.  Are  there,  then,  any  limits  or  discrimina 
tions  in  transactions  of  state?  Are  there  public  prosecutions, 
public  dangers,  public  force,  public  menace?  Undoubtedly 
there  might  be,  and  undoubtedly  many  who  voted  for  im 
peachment  supposed  there  were;  and  undoubtedly  the  people 
of  the  United  States,  when-  they  heard  there  had  been  an 
impeachment  voted,  took  it  for  granted  there  was  something 
to  appear.  We  have  gone  through  it  all.  There  is  no  defect 
of  power  nor  of  will.  Every  channel  of  the  public  informa 
tion,  even  the  newspapers,  seem  to  be  ardent  and  eager 
enough  to  aid  this  prosecution.  Everybody  in  this  country, 
all  the  people  of  the  United  States,  are  interested.  They 
love  their  liberties;  they  love  their  Government;  and  if  any 
body  knew  of  anything  that  would  bear  on  that  question  of 
force,  the  coup  d'Stat,  we  should  have  heard  it.  We  must, 
then,  submit,  with  great  respect,  that  upon  this  evidence  and 
upon  these  allegations  there  is  no  case  made  out  of  evil  pur 
pose,  of  large  design  of  any  kind,  and  no  act  that  in  form  is 
an  infraction  of  any  law. 

Now,  what  is  the  attitude  which  you  must  occupy  toward 


IMPEACHMENT   OF   PRESIDENT   JOHNSON  517 

each  particular  charge  in  these  articles?  Guilty  or  not  guilty 
of  a  high  crime  and  misdemeanor  by  reason  of  charges  made 
and  proved  in  that  article;  guilty  of  what  the  Constitution 
means  as  sufficient  cause  for  removal  of  a  President  from 
office  within  that  article.  You  are  not  to  reach  over  from 
one  article  to  another;  you  are  to  say  guilty  or  not  guilty 
of  each  as  it  comes  along;  and  you  are  to  take  the  first  one 
as  it  appears;  you  are  to  treat  it  as  within  the  premises 
charged  and  proved;  you  are  to  treat  the  President  of  the 
United  States,  for  the  purpose  of  that  determination,  as  if 
he  were  innocent  of  everything  else,  of  good  politics  and  good 
conduct;  you  are  to  deal  with  him  under  your  oath  to  ad 
minister  impartial  justice  within  the  premises  of  accusation 
and  proof  as  if  President  Lincoln  were  charged  with  the 
same  thing,  or  General  Grant,  if  the  proposition  that  political 
gratitude  is  a  lively  sense  of  benefits  expected  leads  men's 
minds  forward  rather  than  backward  in  the  list  of  Presi 
dents;  you  are  to  treat  it  as  if  the  respondent  were  innocent, 
as  if  he  were  your  friend,  as  if  you  agreed  in  public  senti 
ment,  in  public  policy;  and  nevertheless  the  crime  charged 
and  proved  is  such  as  that  you  will  remove  General  Wash 
ington  or  President  Lincoln  for  the  same  offence. 

I  am  not  to  be  told  that  it  was  competent  for  the  managers 
to  prove  that  there  were  coup  d'Stats,  hidden  purposes  of  evil 
to  the  State,  threatened  in  this  innocent  and  formal  act 
apparently.  Let  them  prove  it,  and  then  let  us  disprove  it, 
and  then  judge  us  within  the  compass  of  the  testimony  and 
according  to  the  law  governing  these  considerations.  But  I 
ask  you  if  I  do  not  put  it  to  you  truly  that  within  the  prem 
ises  of  a  charge  and  proof  the  same  judgment  must  go  against 
President  Lincoln  with  his  good  politics,  and  General  Wash 
ington  with  his  majestic  character,  as  against  the  respondent? 

And  so,  as  you  go  along  from  the  first  to  the  second  article 
will  you  remove  him  for  having  made  an  error  about  the 
repeal  or  non-repeal  of  statutes  in  regard  to  appointments 


518         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

to  office,  if  you  can  find  a  fault?  I  cannot  see  any  fault  under 
any  of  the  forms  of  the  statutes.  If  the  power  of  removal  of 
Mr.  Stanton  under  the  former  practice  of  the  Government 
and  unrestricted  by  this  civil-tenure  act  existed,  it  existed 
during  the  session  as  well  as  during  the  recess.  If  that  were 
debatable  and  disputable  the  prevailing  opinion  was  that  it 
covered,  and  the  practice  of  the  Government  shows  that  it 
covered,  the  removal  during  the  session.  At  any  rate,  you 
must  judge  of  this  as  you  would  have  judged  of  Mr.  Lincoln, 
if  he  had  been  charged  with  a  high  crime  in  appointing  Mr. 
Skinner  to  be  Postmaster  General  when  there  was  not  any 
authority  under  the  appointment  acts  of  the  United  States. 
And  this  brings  me  very  properly  to  consider,  as  I  shall 
very  briefly,  in  what  attitude  the  President  stands  before 
you  when  the  discussion  of  vicious  politics  or  of  repugnant 
politics,  whichever  may  be  right  or  wrong,  is  removed  from 
the  case.  I  do  not  hesitate  to  say  that  if  you  separate  your 
feelings  and  your  conduct,  his  feelings  and  his  conduct,  from 
the  aggravations  of  politics  as  they  have  been  bred  since  his 
elevation  to  the  Presidency,  under  the  peculiar  circumstances 
which  placed  him  there,  and  your  views  in  their  severity, 
governed,  undoubtedly,  by  the  grave  juncture  of  the  affairs 
of  the  country,  are  reduced  to  the  ordinary  standard  and 
style  of  estimate  that  should  prevail  between  the  depart 
ments  of  this  Government,  I  do  not  hesitate  to  say  that  upon 
the  impeachment  investigations  and  upon  the  impeachment 
evidence  you  leave  the  general  standing  of  the  President  un 
impaired  in  his  conduct  and  character  as  a  man  or  as  a 
magistrate.  Agree  that  his  policy  has  thwarted  and  opposed 
your  policy,  and  agree  that  yours  is  the  rightful  policy; 
nevertheless,  within  the  Constitution  and  within  his  right, 
and  within  his  principles  as  belonging  to  him  and  known  and 
understood  when  he  was  elevated  to  the  office,  I  apprehend 
that  no  reasonable  man  can  find  it  in  his  heart  to  say  that 
evil  has  been  proved  against  him  here.  And  how  much  is 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  519 

there  in  his  conduct  toward  and  for  his  country  that  up  to 
this  period  of  division  commends  itself  not  only  to  your  ap 
proval  but  to  the  approval  and  applause  of  all  his  country 
men?  I  do  not  insist  upon  this  topic,  but  I  ask  you  to  agree 
with  me  in  this :  that  his  personal  traits  of  character  and  the 
circumstances  of  his  career  have  made  him  in  opinion  what 
he  is,  without  learning,  as  it  is  said  by  his  biographers,  never 
having  enjoyed  a  day's  schooling  in  his  life,  devoted  always 
to  such  energetic  pursuits  in  the  service  of  the  State  as  com 
mended  him  to  the  favor  of  his  fellow-citizens  and  raised 
him  step  by  step  through  all  the  gradations  of  the  public 
service,  and  in  every  trial  of  fidelity  to  his  origin  and  to  the 
common  interests  proved  faithful,  struggling  always  in  his 
public  life  against  the  aristocratic  influences  and  oppressions 
which  domineered  so  much  in  the  section  of  country  from 
which  he  came.  He  was  always  faithful  to  the  common 
interest  of  the  common  people,  and  carried  by  his  aid  and 
efforts  as  much  as  any  one  else  the  popular  measure  of  the 
homestead  act  against  the  southern  policy  and  the  aristo 
cratic  purposes  of  the  governing  interests  of  the  south. 

And  I  ask  you  to  notice  that,  bred  in  a  school  of  Tennessee 
democratic  politics,  he  had  always  learned  to  believe  that  the 
Constitution  must  and  should  be  preserved;  and  I  ask  you 
to  recognize  that  when  it  was  in  peril,  and  all  men  south  of 
a  certain  line  took  up  arms  against  it,  and  all  men  north 
ought  to  have  taken  up  arms  in  politics  or  in  war  for  it,  he 
loved  the  country  and  the  Constitution  more  than  he  loved 
his  section  and  the  glories  that  were  promised  by  the  evil 
spirits  of  the  rebellion.  I  ask  you  whether  he  was  not  as 
firm  in  his  devotion  to  the  Constitution  when  he  said,  in 
December,  1860. 

Then  let  us  stand  by  the  Constitution;  and,  in  saving  the 
Union,  we  save  this,  the  greatest  Government  on  earth. 

And  whether,  after  the  battle  of  Bull  Run,  he  did  not  show 
as  great  an  adhesion  to  the  Constitution  when  he  said: 


520         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

The  Constitution — which  is  based  on  principles  immutable, 
and  upon  which  rest  the  rights  of  men  and  the  hopes  and  expec 
tations  of  those  who  love  freedom  throughout  the  civilized  world — 
must  be  maintained. 

He  is  no  rhetorician  and  no  theorist,  no  sophist  and  no 
philosopher.  The  Constitution  is  to  him  the  only  political 
book  that  he  reads.  The  Constitution  is  to  him  the  only 
great  authority  which  he  obeys.  His  mind  may  not  expand; 
his  views  may  not  be  so  plastic  as  those  of  many  of  his  coun 
trymen;  he  may  not  think  we  have  outlived  the  Constitu 
tion,  and  he  may  not  be  able  to  embrace  the  Declaration  of 
Independence  as  superior  and  predominant  to  it.  But  to 
the  Constitution  he  adheres.  For  it  and  under  it  he  has 
served  the  State  from  boyhood  up — labored  for,  loved  it. 
For  it  he  has  stood  in  arms  against  the  frowns  of  a  Senate; 
for  it  he  has  stood  in  arms  against  the  rebellious  forces  of 
the  enemy;  and  to  it  he  has  bowed  three  times  a  day  with  a 
more  than  eastern  devotion. 

And  when  I  have  heard  drawn  from  the  past  cases  of 
impeachment  and  attempts  at  deposition,  and  five  hundred 
years  have  been  spoken  of  as  furnishing  the  precedents  ex 
plored  by  the  honorable  managers,  I  have  thought  they  found 
no  case  where  one  was  impeached  for  obeying  a  higher  duty 
rather  than  a  written  law  regarded  as  repugnant  to  it,  and 
yet,  familiar  to  every  child  in  this  country,  as  well  as  to  every 
scholar,  a  precedent  much  older  comes  much  nearer  to  this 
expected  entanglement.  When  the  princes  came  to  King 
Darius  and  asked  that  a  law  should  be  made  that  "whoso 
ever  shall  ask  any  petition  for  thirty  days,  save  of  thee,  O 
king,  he  shall  be  cast  into  the  den  of  lions";  and  when  the 
plea  was  made  that  "the  law  of  the  Medes  and  Persians 
altereth  not,"  and  the  minister  of  that  day,  the  great  head 
and  manager  of  the  affairs  of  the  empire,  was  found  still  to 
maintain  his  devotion  to  the  superior  law,  which  made  an 
infraction  of  the  lower  law,  then  was  the  case  when  the 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  521 

question  was  whether  the  power  to  which  he  had  been 
obedient  was  adequate  to  his  protection  against  the  power 
that  he  had  disobeyed;  and  now  the  question  is  whether  the 
Constitution  is  adequate  to  the  protection  of  the  President 
for  his  obedience  to  it  against  a  law  that  the  princes  have 
ordained  that  seeks  to  assert  itself  against  it.  The  result  of 
that  impeachment  we  all  know,  and  the  protection  of  the 
higher  power  was  not  withheld  from  the  obedient  servant. 

The  honorable  Manager,  Mr.  Wilson,  in  the  very  interest 
ing  and  valuable  report  of  the  minority  of  the  Judiciary  Com 
mittee,  entertains  and  warns  the  House  of  the  fate  of  im 
peachment  as  turning  always  upon  those  who  were  ready 
with  its  axe  and  sword  to  destroy.  He  gives,  in  the  language 
of  Lord  Caernarvon  on  Lord  Danby's  trial,  a  history  of  the 
whole  force  of  them,  and  everybody  is  turned  against  in  his 
turn  that  draws  this  sword.  In  this  older  case  that  I  have 
referred  to  you  may  remember  in  the  brief  narrative  that  we 
have  a  history  of  the  sequel  of  the  impeachers : 

And  they  brought  those  men  which  had  accused  Daniel,  and 
they  cast  them  into  the  den  of  lions,  them,  their  children,  and  their 
wives;  and  the  lions  had  the  mastery  of  them,  and  brake  all  their 
bones  in  pieces  or  ever  they  came  at  the  bottom  of  the  den. 

This,  then,  Senators,  is  an  issue  not  of  political  but  of  per 
sonal  guilt,  within  the  limits  of  the  charge  and  within  the 
limits  of  the  proof.  Whoever  decides  it  must  so  decide,  and 
must  decide  upon  that  responsibility  which  belongs  to  an 
infliction  of  actual  and  real  punishment  upon  the  respondent. 
We  all  hold  one  the  other  in  trust;  and  when  the  natural  life 
is  taken  He  who  framed  it  demands  "Where  is  thy  brother?" 
And  when  under  our  frame  of  Government,  whereby  the 
creation  of  all  departments  proceeds  from  the  people,  which 
breathes  into  these  departments,  executive  and  judicial,  the 
breath  of  life;  whose  favor  is  yours  as  well  as  the  President's, 
continuing  force  and  strength,  asks  of  you,  as  your  sentence 
is  promulgated,  "Where  is  thy  brother  in  this  government 


522         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

whom  we  created  and  maintained  alive?"  no  answer  can  be 
given  that  will  satisfy  them  or  will  satisfy  you,  unless  it  be 
in  truth  and  in  fact  that  for  his  guilt  he  was  slain  by  the 
sword  of  the  Constitution  upon  the  altar  of  Justice.  If  that 
be  the  answer  you  are  acquit;  he  is  condemned;  and  the  Con 
stitution  has  triumphed,  for  he  has  disobeyed  and  not 
obeyed  it,  and  you  have  obeyed  and  not  disobeyed  it. 

Power  does  not  always  sway  and  swing  from  the  same 
centre.  I  have  seen  great  changes  and  great  evils  come  from 
this  matter  of  unconstitutional  laws  not  attended  to  as  un 
constitutional,  but  asserted,  and  prevailing,  too,  against  the 
Constitution,  till  at  last  the  power  of  the  Constitution  took 
other  form  than  that  of  peaceful,  judicial  determination  and 
execution.  I  will  put  some  instances  of  the  wickedness  of 
disobeying  unconstitutional  laws  and  of  the  triumph  of  those 
who  maintained  it  to  be  right  and  proper. 

I  knew  a  case  where  the  State  of  Georgia  undertook  to 
make  it  penal  for  a  Christian  missionary  to  preach  the  gospel 
to  the  Indians,  and  I  knew  by  whose  advice  the  missionary 
determined  that  he  would  preach  the  gospel  and  not  obey 
the  law  of  Georgia,  on  the  assurance  that  the  Constitution 
of  the  United  States  would  bear  him  out  in  it;  and  the  mis 
sionary,  as  gentle  as  a  woman,  but  as  firm  as  every  free  citi 
zen  of  the  United  States  ought  to  be,  kept  on  teaching  to 
the  Cherokees. 

And  I  knew  the  great  leader  of  the  moral  and  religious 
sentiment  of  the  United  States,  who,  representing  in  this 
body,  and  by  the  same  name  and  of  the  blood  of  one  of  its 
distinguished  Senators  now  [Mr.  Frelinghuysen],  the  State 
of  New  Jersey,  tried  hard  to  save  his  country  from  the 
degradation  of  the  oppression  of  the  Indians  at  the  instance 
of  the  haughty  planters  of  Georgia.  The  Supreme  Court  of 
the  United  States  held  the  law  unconstitutional  and  issued 
its  mandate,  and  the  State  of  Georgia  laughed  at  it  and  kept 
the  missionary  in  prison,  and  Chief  Justice  Marshall  and 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  523 

Judge  Story  and  their  colleagues  hung  their  heads  at  the 
want  of  power  in  the  Constitution  to  maintain  the  depart 
ments  of  it.  But  the  war  came,  and  as  from  the  clouds  from 
Lookout  Mountain  swooping  down  upon  Missionary  Ridge 
came  the  thunders  of  the  violated  Constitution  of  the  United 
States  and  the  lightnings  of  its  power,  over  the  still  home  of 
the  missionary  Worcester,  and  the  grave  of  the  missionary 
Worcester,  taught  the  State  of  Georgia  what  comes  of  vio 
lating  the  Constitution  of  the  United  States. 

I  have  seen  an  honored  citizen  of  the  State  of  Massachu 
setts,  in  behalf  of  its  colored  seamen,  seek  to  make  a  case  by 
visiting  South  Carolina  to  extend  over  those  poor  and  feeble 
people  the  protection  of  the  Constitution  of  the  United 
States.  I  have  seen  him  attended  by  a  daughter  and  grand 
child  of  a  signer  of  the  Declaration  of  Independence  and  a 
framer  of  the  Constitution,  who  might  be  supposed  to  have 
a  right  to  its  protection,  driven  by  the  power  of  Charleston 
and  the  power  of  South  Carolina,  and  the  mob  and  the  gen 
tlemen  alike,  out  of  that  State  and  prevented  from  making 
a  case  to  take  to  the  Supreme  Court  to  assert  the  protection 
of  the  Constitution.  And  I  have  lived  to  see  the  case  thus 
made  up  determined  that  if  the  Massachusetts  seamen,  for 
the  support  of  slavery,  could  not  have  a  case  made  up,  then 
slavery  must  cease;  and  I  have  lived  to  see  a  great  captain 
of  our  armies,  a  General  of  the  name  and  blood  of  Sherman, 
sweep  his  tempestuous  war  from  the  mountain  to  the  sea, 
and  returning  home  trample  the  State  of  South  Carolina 
beneath  the  tread  of  his  soldiery;  and  I  have  thought  that 
the  Constitution  of  the  United  States  had  some  processes 
stronger  than  civil  mandates  that  no  resistance  could  meet. 
I  do  not  think  the  people  of  Massachusetts  suppose  that 
efforts  to  set  aside  unconstitutional  laws  and  to  make  cases 
for  the  Supreme  Court  of  the  United  States  are  so  wicked  as 
is  urged  here  by  some  of  its  representatives;  and  I  believe 
that  if  we  cannot  be  taught  by  the  lessons  we  have  learned 


524          SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

of  obedience  to  the  Constitution  in  peaceful  methods  of  find 
ing  out  its  meaning,  we  shall  yet  need  to  receive  some  other 
instruction  on  the  subject. 

The  strength  of  every  system  is  in  its  weakest  part.  Alas 
for  that  rule!  But  when  the  weakest  part  breaks,  the  whole 
is  broken.  The  chain  lets  slip  the  ship  when  the  weak  link 
breaks,  and  the  ship  founders.  The  body  fails  when  the 
weak  function  is  vitally  attacked;  and  so  with  every  struc 
ture,  social  and  political,  the  weak  point  is  the  point  of  dan 
ger,  and  the  weak  point  of  the  Constitution  is  now  before 
you  in  the  maintenance  of  the  co-ordination  of  the  depart 
ments  of  the  Government,  and  if  one  cannot  be  kept  from 
devouring  another  then  the  experiment  of  our  ancestors  will 
fail.  They  attempted  to  interpose  justice.  If  that  fails, 
what  can  endure? 

We  have  come  all  at  once  to  the  great  experiences  and 
trials  of  a  full-grown  nation,  all  of  which  we  thought  we 
should  escape.  We  never  dreamed  that  an  instructed  and 
equal  people,  with  freedom  in  every  form,  with  a  Government 
yielding  to  the  touch  of  popular  will  so  readily,  ever  would 
come  to  the  trials  of  force  against  it.  We  never  thought  that 
what  other  systems  from  oppression  had  developed — civil 
war — would  be  our  fate  without  oppression.  We  never 
thought  that  the  remedy  to  get  rid  of  a  despotic  ruler  fixed 
by  a  Constitution  against  the  will  of  the  people  would  ever 
bring  assassination  into  our  political  experience.  We  never 
thought  that  political  differences  under  an  elective  Presi 
dency  would  bring  in  array  the  departments  of  the  Govern 
ment  against  one  another  to  anticipate  by  ten  months  the 
operation  of  the  regular  election.  And  yet  we  take  them  all, 
one  after  another,  and  we  take  them  because  we  have  grown 
to  the  full  vigor  of  manhood,  when  the  strong  passions  and 
interests  that  have  destroyed  other  nations,  composed  of 
human  nature  like  ourselves,  have  overthrown  them.  But 
we  have  met  by  the  powers  of  the  Constitution  these  great 


IMPEACHMENT  OF  PRESIDENT  JOHNSON  525 

dangers — prophesied  when  they  would  arise  as  likely  to  be 
our  doom — the  distractions  of  civil  strife,  the  exhaustions 
of  powerful  war,  the  intervention  of  the  regularity  of  power 
through  the  violence  of  assassination.  We  could  summon 
from  the  people  a  million  of  men  and  inexhaustible  treasure 
to  help  the  Constitution  in  its  time  of  need.  Can  we  sum 
mon  now  resources  enough  of  civil  prudence  and  of  restraint 
of  passion  to  carry  us  through  this  trial,  so  that  whatever 
result  may  follow,  in  whatever  form,  the  people  may  feel 
that  the  Constitution  has  received  no  wound !  To  this  Court, 
the  last  and  best  resort  for  this  determination,  it  is  to  be  left. 
And  oh,  if  you  could  only  carry  yourselves  back  to  the  spirit 
and  the  purpose  and  the  wisdom  and  the  courage  of  the 
framers  of  the  Government,  how  safe  would  it  be  in  your 
hands !  How  safe  is  it  now  in  your  hands,  for  you  who  have 
entered  into  their  labors  will  see  to  it  that  the  structure  of 
your  work  comports  in  durability  and  excellency  with  theirs. 
Indeed,  so  familiar  has  the  course  of  the  argument  made  us 
with  the  names  of  the  men  of  the  convention  and  of  the  first 
Congress  that  I  could  sometimes  seem  to  think  that  the 
presence  even  of  the  Chief  Justice  was  replaced  by  the  serene 
majesty  of  Washington,  and  that  from  Massachusetts  we 
had  Adams  and  Ames,  from  Connecticut  Sherman  and  Ells 
worth,  from  New  Jersey  Paterson  and  Boudinot,  and  from 
New  York  Hamilton  and  Benson,  and  that  they  were  to 
determine  this  case  for  us.  Act,  then,  as  if  under  this  serene 
and  majestic  presence  your  deliberations  were  to  be  con 
ducted  to  their  close,  and  the  Constitution  was  to  come  out 
from  the  watchful  solicitude  of  these  great  guardians  of  it 
as  if  from  their  own  judgment  in  this  high  court  of  impeach 
ment. 


VI 

ARGUMENT  IN  THE  UNITED  STATES  SUPREME 
COURT,  ON  BEHALF  OF  THE  GOVERNMENT, 
IN  HEPBURN  VS.  GRISWOLD  (LEGAL  TENDER 

CASE) 

NOTE 

By  the  legislation  of  Congress  in  1862  the  notes  of  the  United 
States  were  made  legal  tender  for  the  payment  of  private  debts. 
The  case  of  Hepburn  vs.  Griswold  (Supreme  Court  Reports,  8 
Wallace  603)  brought  squarely  before  the  Supreme  Court  the 
question  of  the  power  of  Congress  under  the  Constitution  to  enact 
the  measures  in  question  and  whether  they  were  applicable  to  debts 
contracted  prior  to  the  enactment.  This  case  was  argued  at  the 
same  time  as  the  case  of  Bronson  vs.  Rodes  (7  Wallace,  229). 
Both  cases  involved  controversies  between  private  litigants  that 
turned  upon  the  effect  of  the  legal  tender  legislation.  The  cases 
were  argued  and  re-argued,  and  upon  the  re-argument,  December 
9  and  10,  1868,  Mr.  Evarts,  being  then  Attorney  General  of  the 
United  States,  delivered  the  following  argument  on  the  public 
questions  involved,  to  sustain  in  behalf  of  the  Government  the 
Constitutionality  of  the  legal  tender  act,  at  the  same  time  filing 
with  the  Court  his  brief  in  the  cases.  Mr.  Clarkson  N.  Potter 
appeared  as  his  opponent.  When  the  legal  tender  question  was 
brought  before  the  Supreme  Court,  unusual  public  interest  was 
aroused  from  the  fact  that  Mr.  Chase,  who  as  Secretary  of  the 
Treasury  had,  during  the  Civil  War,  urged  upon  Congress  the  im 
portance  and  necessity  of  this  legislation  to  support  the  credit 
of  the  Government  under  the  stress  of  the  war,  was  now  the 
Chief  Justice  of  the  Court  that  was  to  determine  the  Constitu 
tional  validity  of  its  provisions.  It  was  in  these  cases  that  the 
Chief  Justice  by  his  influence  and  vote  in  a  divided  court  con 
demned  as  unconstitutional  and  void  the  very  measures  that  his 
influence  at  the  head  of  the  finances  of  the  Government  had  been 
largely  instrumental  in  procuring  from  Congress.  The  case  was 

526 


LEGAL  TENDER  CASE  527 

subsequently  reversed  in  Knox  vs.  Lee  (12  Wallace  457)  and  the 
legal  tender  legislation  was  upheld. 

Mr.  Evarts,  in  his  eulogy  on  Chief  Justice  Chase,  thus  speaks  of 
this  incident  in  Mr.  Chase's  career: 

"And  now,  when,  after  repeated  argument  at  the  bar,  and  long 
deliberations  of  the  Court,  the  decision  was  announced,  the  de 
termining  opinion  of  the  Chief  Justice,  in  an  equal  division  of  the 
six  associate  justices,  pronounced  the  legal  tender  acts  unconstitu 
tional,  as  not  within  the  discretion  of  the  political  departments  of 
Government,  Congress,  and  the  Executive,  to  determine  this  very 
question  of  the  necessity  of  the  juncture  as  justifying  their  enact 
ment. 

"The  singularity  of  the  situation  struck  everybody,  and  greatly 
divided  public  sentiment  between  applause  and  reproaches  of  the 
Chief  Justice,  as  the  principal  figure  both  in  the  administrative 
measure  and  in  its  judicial  condemnation.  But  soon,  a  new  phase 
of  the  unsettled  agitation  on  the  merits  of  the  constitutional  ques 
tion,  drew  public  attention,  and  created  even  greater  excitement  of 
feeling  and  diversity  of  sentiment.  The  Court,  which  had  been 
hostile  to  the  appointing  power  of  President  Johnson,  had  been 
again  opened  by  Congress  to  its  permanent  number,  and  its  vacan 
cies  had  been  filled.  A  new  case,  involving  the  vexed  question, 
was  heard  by  the  Court,  and  the  validity  of  the  disputed  laws  was 
sustained  by  its  judgment.  The  signal  spectacle  of  the  Court, 
which  had  judged  over  Congress  and  the  Secretary,  now  judging 
over  itself,  gave  rise  to  much  satire  on  one  side  and  the  other,  and 
to  some  coarseness  of  contumely  as  to  the  motives  and  the  means 
of  these  eventful  mutations  in  matters,  where  stability  and  uni 
formity  are,  confessedly,  of  the  highest  value  to  the  public  inter 
ests,  and  to  the  dignity  of  Government. 

"Confessing  to  a  firm  approval  of  the  final  disposition  of  the 
constitutional  question  by  the  Court,  I  concede  it  to  be  a  subject  of 
thorough  regret  that  the  just  result  was  not  reached  by  less  un 
certain  steps.  But,  with  this  my  adverse  attitude  to  the  Chief 
Justice's  judicial  position  on  the  question,  I  find  no  difficulty  in 
discarding  all  suggestions  which  would  mix  up  political  calculations 
with  his  judicial  action.  The  error  of  the  Chief  Justice,  if,  under 
the  last  judgment  of  the  Court,  we  may  venture  so  to  consider  it, 


528         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

was  in  following  his  strong  sense  of  the  supreme  importance  of  re 
storing  the  integrity  of  the  currency,  and  his  impatience  and  despair 
at  the  feebleness  of  the  political  departments  of  the  Government 
in  that  direction,  to  the  point  of  concluding  that  the  final  wisdom 
of  this  great  question, — inter  apices  juris,  as  well  as  of  the  highest 
reasons  of  state — was  to  deny  to  the  brief  exigency  of  war,  what  was 
so  dangerous  to  the  permanent  necessities  of  peace.  But  a  larger 
reason  and  a  wider  prudence,  as  it  would  seem,  favor  the  prevailing 
judgment,  which  refused  to  cripple  the  permanent  faculties  of 
Government  for  the  unforeseen  duties  of  the  future,  and  drew  back 
the  Court  from  the  perilous  edge  of  law-making,  which,  overpassed, 
must  react  to  cripple,  in  turn,  the  essential  judicial  power.  The 
past,  thus,  was  not  discredited,  nor  the  future  disabled." 

ARGUMENT 

//  the  Court  please:  At  the  last  term  of  this  Court,  in  two 
cases  which  had  been  argued  before  it,  and,  doubtless,  ably 
and  thoroughly  argued,  to  which  the  United  States  was  not 
a  party,  and  which  were  held  under  advisement  by  the  Court, 
your  Honors  were  pleased  to  direct  a  re-argument  as  between 
the  parties,  and  also  to  extend  a  leave  to  the  Attorney  Gen 
eral  to  be  heard  on  the  part  of  the  United  States.  This 
permissive  invitation  of  the  Court — 

THE  CHIEF  JUSTICE:  It  is  proper  to  be  said  that  the 
Government  asked  to  be  heard.  Your  predecessor,  Mr. 
Stanbery  appeared  in  Court  with  a  letter  from  the  Secretary 
of  the  Treasury,  asking  that  the  Government  might  be 
heard  through  its  Attorney  General  on  these  questions. 

MR.  EVARTS:  I  was  proceeding,  if  your  Honors  please, 
to  state  as  much.  The  re-argument,  as  I  understand,  was 
ordered  by  the  Court,  at  least,  that  is  the  effect  of  the 
order.  I  am  not  advised  of  the  motives  of  the  Court  in 
making  the  order. 

This  permissive  invitation  to  the  law  officer  of  the  Govern 
ment  to  be  heard  in  the  causes  was  understood  to  be  founded 
upon  a  representation  that  the  public  interests  involved 


LEGAL  TENDER  CASE  529 

were  such  as  were  regarded  by  the  executive  department  as 
proper  to  be  presented  in  behalf  of  the  Government  to  the 
consideration  of  the  Court. 

Now,  this  permission  to  the  Attorney  General  must  be 
understood,  of  course,  to  extend  only  to  the  public  question 
that  is  involved  and  upon  unfolding  the  records  of  this  con 
troversy  between  these  private  parties,  it  is  discovered  that 
the  public  question,  involved  in  the  discussion  of  their  rights, 
is  the  constitutionality  and  construction  of  a  certain  act  of 
Congress — the  act  of  February  25,  1862.  The  point  in 
which  that  act  comes  to  touch  these  private  interests  in 
controversy,  and  thus  to  be  involved  in  the  forensic  discus 
sion  and  the  judicial  decision  of  these  private  controversies, 
has  to  do  with  that  portion  of  the  act  which  imparts  to  a 
certain  class  of  the  public  securities  of  the  United  States,  in 
favor  of  the  public  creditor,  the  function  or  usefulness  of 
service  as  money  in  the  payment  of  private  debts,  at  the  will 
of  the  debtor.  This  faculty  in  favor  of  the  public  securities 
and  the  public  credit,  is  imparted  by  that  clause  which 
provides  that  they  shall  be  lawful  money  and  a  legal  tender 
for  all  private  debts  within  the  United  States. 

In  these  private  litigations  to  which  I  have  referred,  and 
in  consequence  of  which  the  question  is  now  to  be  discussed 
in  the  public  interests,  rights  were  alleged  on  the  one  side, 
and  opposed  on  the  other,  which  depended  for  their  support 
upon  the  validity  of  this  act  of  Congress.  Now,  in  this  dis 
cussion  which  I  shall  undertake,  I  shall  not  be  unobservant 
of  the  posture  of  this  question.  It  is  not  an  original  inquiry 
before  your  Honors,  that  is  now  being  instituted.  I  enter  a 
field  in  which  the  harvest  has  already  been  reaped  by  the 
sharp  sickles  of  the  lawyers,  and  has  been  bound  into  sheaves 
in  the  judgments  of  the  subordinate  courts.  I  am,  there 
fore,  not  to  treat  it  except  so  far  as  I  may  in  aid  of  what  light 
has  already  been  shed  upon  the  subject.  Besides  the  con 
fidence  in  the  investigations  of  the  bar  which  have  preceded 

36 


530         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

me  in  this  question,  more  than  in  almost  any  other,  which  is 
yet  to  be  passed  upon  by  the  highest  tribunal  of  the  land, 
we  have  the  most  extensive,  the  most  satisfactory,  the  most 
fruitful,  the  most  elaborate  judicial  examinations,  on  the 
one  side  and  on  the  other  of  this  controversy,  in  the  judg 
ments  of  some  of  the  ablest  and  most  distinguished  State 
Courts  in  the  country.  I  think  no  one  can  hesitate  to  say 
that,  in  the  judgments  of  the  Court  of  the  State  of  New  York, 
of  Pennsylvania,  and  of  Kentucky,  in  each  one  there  being 
divided  and  dissenting  opinions,  there  has  been,  under  the 
responsibility  of  judicial  and  impartial  investigation  and 
discussion,  as  thorough,  as  learned,  and  as  faithful  an 
examination  of  the  topics  that  must  be  passed  upon  by  this 
Court,  as  it  lies  in  the  resources  of  the  intellect  of  man  to 
furnish. 

Now,  that  we  may  not  argue  too  much  on  generalities, 
when  the  subject  is  so  inviting  to  general  discussions  both  of 
economy  and  of  political  power,  and  that  we  may  under 
stand  precisely  the  action  of  this  Government  that  is  brought 
in  question  before  this  Court,  thus  invoking  its  highest 
function  to  be  applied,  in  its  reason  and  judgment,  to  cor 
rect  the  power  of  the  country  if  it  has  erred,  let  us  inquire 
what  it  is  that  this  act  of  the  political  authority  of  the 
United  States  supported  by  an  immense  majority  of  the 
Representatives  of  the  people  in  the  lower  House,  passed  by 
a  vote  of  thirty  to  seven  in  the  Senate,  and  approved  by  the 
Executive  of  the  United  States,  has  undertaken  to  do,  and 
in  what  right  or  claim  of  the  public  interests  and  duty,  it 
has  sought  to  perform  the  office  of  good  government,  accord 
ing  to  its  terms,  over  the  people  of  this  country. 

The  act  is  entitled  "An  Act  to  authorize  the  Issue  of 
United  States  Notes,  and  for  the  Redemption  or  Funding 
thereof,  and  for  Funding  the  Floating  Debt  of  the  United 
States."  It  is,  then,  a  measure,  in  its  title  and  in  its  subject, 
of  the  largest  connection  and  importance  with  regard  to  the 


LEGAL  TENDER  CASE  531 

public  credit,  the  public  resources,  the  means,  and  agencies 
and  powers  of  Government. 

Its  operative  section  only,  as  the  main  feature  and  inci 
dent  in  the  enactment,  present  to  the  notice  of  the  Court 
and  of  the  nation  this  particular  provision,  which  is  supposed 
to  militate  against  the  guaranties  of  the  Constitution,  against 
the  private  rights  of  the  citizen.  It  is  a  provision  that  there 
may  be  issued  "on  the  credit  of  the  United  States,  one 
hundred  and  fifty  millions  of  dollars  of  United  States  notes, 
not  bearing  interest,  payable  to  bearer  at  the  Treasury  of 
the  United  States"  and  of  convenient  denominations;  and 
then  this  value,  this  service,  this  support  to  currency,  is 
imparted  to  this  form  of  the  public  debt:  "such  notes  herein 
authorized  shall  be  receivable  in  payment  of  all  taxes,  in 
ternal  duties,  excises,  debts  and  demands  of  every  kind  due 
to  the  United  States,  except  duties  on  imports." 

The  Government  thus  spreads  them  among  the  people  as 
being,  not  only  evidence  of  its  debt  to  them,  but  as  accept 
able  in  discharge  of  their  debts  to  it — "of  all  claims  and 
demands  against  the  United  States,  of  every  kind  whatso 
ever,  except  for  interest  upon  bonds  and  notes  which  shall 
be  paid  in  coin."  It  professes  to  say  to  the  subjects  of  the 
Government,  "this  form  of  our  indebtedness  to  you  shall 
be  received  by  you  in  liquidation,  or  settlement  and  dis 
charge,  of  all  other  forms  of  our  indebtedness  to  you,  except 
our  debts  in  the  shape  of  bonds  and  notes,  which  shall  be 
payable  in  coin." 

Then  it  is  also  provided  that  they  shall  be  "lawful  money 
and  a  legal  tender  in  payment  of  all  debts,  public  and  private, 
within  the  United  States,  except  duties  on  imports  and  inter 
est  as  aforesaid." — a  tender  for  all  debts  which  the  Govern 
ment  owes  the  citizen,  and  all  debts  that  the  citizen  owes 
the  public,  the  Government. 

In  this  financial  arrangement  proposed  by  the  act  is  this 
further  feature,  by  which  as  I  shall  submit  to  the  Court, 


532         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

the  Government  undertakes  to  deal  on  its  part,  with  one 
side  of  the  obligation,  and  with  the  citizens  as  a  mass  on  the 
other.  It  is  provided  that  as  among  the  citizens  these 
notes  shall  have  the  same  virtue  and  faculty  of  liquidating 
debts  among  them.  So  that,  finally,  all  the  authority  for 
the  payment  of  debts  shall  end  in  securing  to  the  parties 
the  possession  of  this  credit  of  the  Government,  issued  in 
this  form;  and  the  Government  professes,  and,  in  fact,  is 
held  for,  the  payment  finally,  in  the  liquidation  as  between 
Government  and  the  people,  of  these  securities  in  coin. 

But  the  scope  and  purpose  of  the  financial  arrangement 
does  not  end  here;  for  it  is  provided  that  any  holder  of  these 
notes  to  the  amount  of  fifty  dollars  or  any  multiple  of  fifty, 
may  present  them  to  the  Treasurer  of  the  United  States, 
and  by  an  arrangement  to  facilitate  the  transaction,  they 
are  entitled  to  receive  bonds  of  the  United  States  with  inter 
est  payable  semi-annually  at  six  per  cent  per  annum,  re 
deemable  at  certain  dates.  "Such  United  States  notes  shall 
be  received  the  same  as  coin,  at  their  par  value,  in  payment 
for  any  loans  that  may  be  hereafter  sold  or  negotiated  by  the 
Secretary  of  the  Treasury,  and  may  be  re-issued  from  time 
to  time  as  the  exigencies  of  the  public  interests  shall  require." 

As  I  understand  it,  of  all  that  this  act  undertakes  to  ac 
complish  in  the  financial  obligations  of  the  Government  to 
the  people  and  of  the  people  to  the  Government,  there  is  no 
feature  of  it,  the  constitutionality  of  which  is  brought  in 
doubt,  except  the  single  and  peculiar  vigor,  imparted  to 
these  securities,  of  service  in  the  liquidation  between  debtor 
and  creditor  in  private  transactions,  as  money.  All  the 
judicial  opinions,  all  the  forensic  disputations,  agree  that, 
although  these  notes  do  come  distinctly  up  to  the  description 
defined  by  a  phrase,  in  our  early  constitutional  period,  of 
"bills  of  credit,"  and  although  the  Constitution  contains  no 
express  authority  to  emit  bills  of  credit,  although  this  act 
purports,  not  only  to  give  these  notes  currency  in  dis- 


LEGAL  TENDER  CASE  533 

charge  of  all  obligations  to  the  Government,  except  duties 
on  imports,  but  also  compulsory  power  to  liquidate,  and  to 
settle  and  discharge,  in  a  certain  sense,  all  obligations  of  the 
Government  to  the  citizens ;  yet,  all  that  is  constitutional.  It 
is  within  the  authority  of  Congress,  within  the  power  of  this 
Government,  and  the  question  of  appropriateness  or  of 
adaptation  or  of  wisdom,  in  these  financial  arrangements,  up 
to  this  point,  is  not  open  to  any  judicial  disputation  upon 
any  reason  that  can  be  found  in  the  Constitution  of  the 
United  States. 

There,  then,  remains  for  consideration  only  this  point, 
and  it  is  much  narrower  than  the  discussion  of  whether  the 
Government  of  the  United  States  has  plenary  authority 
over  the  subject  of  legal  tender  in  the  United  States,  or 
plenary  authority  over  the  question  of  money  in  the  United 
States;  it  is  not  at  all  a  question  whether  the  United  States 
Government  can  make,  on  its  own  motive  and  for  its  own  sake, 
tobacco  or  cotton  a  legal  tender ;  it  is  not  a  question  whether, 
upon  its  own  motive  and  for  its  own  sake,  it  can  provide  for 
any  arrangement  of  money,  except  the  most  restricted  one 
contemplated  by  the  Constitution  in  any  construction  that 
has  been  pretended;  it  is  a  quesiton  whether,  in  dealing 
with  the  public  debt  and  the  public  taxes,  the  public  re 
sources  of  income  and  the  public  sources  of  expenditure — 
whether,  in  grasping  within  its  comprehension  the  whole 
sphere  of  its  duties  and  of  the  obligations  of  the  citizen,  in 
reference  to  the  financial  authority,  means,  and  adminis 
tration  of  the  Federal  Government,  they  can  interpose  be 
tween  this  issue — this  form  of  credit — and  this  final  pay 
ment  in  gold  that  is  to  result  according  to  the  promise, — 
whether  they  can  interpose  this  expedient  for  sustaining 
that  credit,  between  the  points  of  the  issue  and  of  the  final 
redemption  and  satisfaction;  and  distribute  the  equality  of 
the  burden,  which  the  necessities  of  the  Government  require 
to  be  borne  somewhere,  between  these  points  of  issue  and  of 


534         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

redemption,  by  this  transfusion  and  impartial  distribution 
throughout  the  mass  of  the  community,  and  in  the  trans 
action  of  private  debt  and  credit. 

Now,  if  the  Court  please,  it  will  be  seen  at  the  outset, 
that  this  subject  has  the  closest  connection  with  the  subject 
of  money,  and  with  that  feature  in  the  subject  of  money 
which  relates  to  its  being  a  compulsory  legal  tender  in 
liquidation  of  debt. 

My  first  proposition,  then,  is  that  to  determine  what  shall 
be  the  money  of  a  country,  and  how  it  shall  serve  its  purposes  as 
a  measure  of  value  and  a  medium  of  exchange,  including  its 
efficacy  as  a  legal  tender  in  satisfaction  of  debts,  belongs  to 
government.  So,  too,  to  determine  whether  anything  besides 
money  shall  be  a  legal  tender  in  satisfaction  of  debts  among  its 
subjects  or  citizens  belongs  to  government;  for,  to  determine 
that  tobacco  or  cotton  shall  serve  as  a  legal  tender  under  the 
authority  of  government,  does  not  make  it  the  money  of 
the  Government  necessarily.  It  is  a  provision,  in  terms  and 
in  substance,  that  something  besides  money  shall,  under 
some  emergency  and  special  motive  to  justify  it,  answer  the 
purposes  of  money.  Now,  I  do  not  imagine  that  any  phi 
losopher  or  statesman  or  politician  would  ever  think  of 
holding  that  this  subject  of  the  determination  of  what  should 
be  the  money  of  a  country,  or  how  it  should  perform  its 
services  in  respect  to  legal  tender  or  otherwise,  possibly 
belonged  to  that  domain  of  private  rights  which  should  be 
withdrawn  from  all  government.  It  is  not  a  matter  which 
touches  our  relations,  which  are  deeper  and  higher  than  those 
of  government.  It  does  not  affect  the  relations  between 
man  and  God,  nor  the  questions  of  personal  liberty  or  of 
inalienable  rights,  or  in  any  manner  touch  what  philosophers 
and  moralists  and  statesmen  consider  should,  in  the  advance 
of  society,  be  more  and  more  largely  withdrawn  from  the 
domain  of  government,  as  liberty  of  conscience  and  liberty 
of  speech,  and  the  right  to  property,  to  life,  and  to  the  pur- 


LEGAL  TENDER  CASE  535 

suit  of  happiness.  This  is  social,  this  is  public,  this  is  gov 
ernmental;  this  is  wholly  circumstantial,  wholly  modal; 
and  if  there  is  anything  that  a  community  in  coming  to 
gether  submit  to  the  regulation  of  a  common  authority,  it  is 
this  establishment  of  money,  and  this  regulation  of  legal 
tender. 

So,  too,  I  submit  to  the  Court,  that  the  actual  regulation 
of  money  and  of  legal  tender  in  satisfaction  of  debts,  is 
neither  a  principal  nor  a  substantive  power  of  government. 
It  is  a  subordinate  and  administrative  means,  in  aid  of,  in 
connection  with,  some  principal  and  substantive  end  and 
duty  of  government.  It  has  been  employed,  for  its  own 
sake,  upon  its  own  motives  only,  but  always  as  a  means,  as 
a  method,  as  a  contrivance,  for  accomplishing  some  general 
duty,  some  general  obligation.  And  I  submit  that  the  whole 
judgment  to  be  passed  upon  the  regulations  by  any  govern 
ment  of  this  subject  of  the  discharge  of  debt  through  the 
medium  of  money  or  whatever  else  shall  be  established  as 
legal  tender  to  that  end,  must  be  in  reference  to  the  wisdom 
or  the  justice  of  the  means. 

Now,  in  saying  that,  properly,  in  discussions  of  polity  or 
of  government,  this  matter  of  the  money  or  of  the  legal 
tender  of  a  country  in  the  discharge  of  debts,  is  not  to  be 
regarded  as  a  principal  end  or  as  a  substantive  power  of  gov 
ernment,  but  as  only  a  means  towards  an  end,  a  faculty  in 
aid  of  a  power,  we  are  not  to  be  understood  as  disparaging 
the  importance  of  the  subordinate  and  administrative  au 
thority,  or  of  the  limits  which  morality,  which  justice,  may 
impose  upon  a  government,  or  of  the  importance  to  the 
people  of  some  adequate  guaranties  for  the  establishment 
and  regulation  of  this  means  to  an  end,  of  this  aid  in  execu 
tion  of  a  power  necessary  to  the  public  interests  and  the 
general  welfare. 

I  have  attempted  to  secure  your  Honors'  assent  to  the 
general  introductory  proposition,  that,  in  its  own  nature, 


536         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

the  regulation  of  the  legal  tender  of  the  country  was  in  the 
power  of  its  government,  and  it  was  neither  an  end  nor 
characteristic  of  government  in  any  political  or  philosophical 
or  public  sense;  but  that  it  was  an  administrative  and  sub 
ordinate  means  at  the  service  of  government  for  the  execu 
tion  of  some  of  its  powers  and  some  of  its  duties. 

The  learned  counsel  who  argued  against  the  constitu 
tionality  of  this  law,  Mr.  Potter,  of  New  York,  and  attracted 
the  attention  of  all  of  us  to  the  force  and  dignity  of  his  ob 
servations  upon  the  general  as  well  as  upon  the  special 
considerations  of  the  case,  was  disposed  to  question  this  in 
that  form  of  criticism  which  has  been  often  insisted  upon, 
namely,  that  this  is  not  an  inherent  power  of  sovereignty. 
These  are  general  terms, — inherent  power  of  sovereignty. 
He  then  proceeds  to  say  that  it  is  not  an  inference  that  it 
belongs  inherently  to  government  because  governments 
(and  this  he  admits)  have  always  possessed  it. 

It  seems  to  me,  when  you  admit  that  in  the  experience  of 
human  affairs,  in  the  arrangement  of  what  belongs  to  the 
Government,  and  what  to  personal  rights  not  to  be  sub 
jected  to  government,  this  power  of  regulation  of  tender  has 
always  been  in  the  possession  of  government,  you  admit 
almost  all  that  is  necessary  to  show  that,  in  its  nature,  it 
belongs  to  government.  But  being  still  more  specific,  he 
says  that  it  may  be  reserved  to  the  people.  It  may  be 
reserved  from  government,  it  may  be  denied  and  prohibited 
to  government;  but  if  it  should  be,  then  it  is  obliterated 
from  the  functions  of  society.  Because,  to  say  that  the 
individual  possesses  the  power  of  regulating  the  legal  tender 
for  the  community  or  the  power  to  have  the  legal  tender  con 
form  to  what  suits  his  conscience  and  his  interests,  is  simply 
to  say  that  there  shall  be  no  legal  tender  at  all;  for  it  is  by 
its  compulsory  feature  of  authority  and  of  law,  imposed  by 
the  consent  of  the  community  within  which  it  prevails, 
that  it  comes  to  be  legal  tender,  which  authority  is  expressed 


LEGAL  TENDER  CASE  537 

and  enforced  by  that  representation  to  which  they  commit 
what  belongs  to  their  common  consent,  that  is,  to  government. 

Let  us  not,  then,  confound  this  step  of  the  argument  which 
is  to  show  that  this  power,  this  faculty,  this  means,  this  con 
trivance,  subordinate  and  administrative,  which  always 
has  been,  and  of  necessity  always  must  be,  in  the  service  of 
the  government  for  its  general  purposes, — does  belong  to 
government  in  its  very  nature,  with  a  subsequent  step, 
which  is  to  show  that  it  has  not  been  withheld  by  the  people 
from  the  Government  and  thus  obliterated  from  its  functions, 
and  has  not  been  denied  in  the  principal  and  organic  law  of 
our  Government,  the  Constitution,  so  as  to  be  no  longer  open 
to  this  particular,  subordinate  legislation  concerning  it 
which  has  been  attempted.  Both  of  these  features  might 
be  found  in  any  government  established  by  man  upon  the 
consent  of  the  governed,  one  that  legal  tender  was  with 
drawn  from  governmental  control,  and  the  institution, 
therefore,  no  longer  at  the  service  of  Government,  and  in  the 
organic  law  itself,  the  Constitution  itself,  it  had  been  estab 
lished  by  positive  enactment  and  within  restricted  and 
definite  rules  and  laws  of  prescription  which  terminated  the 
action  of  Government  on  the  subject. 

If  it  be,  then,  in  the  very  nature  of  this  subject,  that  the 
regulation  of  legal  tender  is  a  means  and  appliance  of  gov 
ernment,  that  it  is  impossible  to  range  it  within  the  personal 
rights  and  immunities  which  are  withdrawn  from  all  govern 
ment  and  not  left  to  the  control  of  the  consenting  will  of 
the  people,  the  only  question  left  for  us  then  to  determine, 
is,  whether,  in  our  Government,  this  authority  to  the  extent 
and  in  the  form  and  effect  with  which  it  has  been  attempted 
to  be  exercised  in  the  act  of  Congress  in  question  is  within 
the  permissive  authority  of  Congress  accorded  by  the  Con 
stitution.  Now,  this  exercise  of  power  by  Congress  may 
exceed  its  true  authority  under  our  complex  system  of 
government,  for  one  of  three  reasons: 


538         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

First,  for  the  reason  that  the  whole  power  is  accorded  by 
the  Constitution  to  the  States,  and  therefore  any  interven 
tion  by  the  Federal  Government  in  regulating  legal  tender 
is  beyond  the  powers  conferred  by  the  Constitution. 

Second,  because,  though  a  certain  measure  of  power  over 
the  subject  is  accorded  to  the  Federal  Government,  this 
particular  exercise  of  it,  is  beyond  that  permissive  power. 

Third,  because  this  exercise  of  it,  though  within  the  per 
missive  powers  conferred  upon  Congress  as  a  means  to  their 
execution,  and,  but  for  the  prohibition,  supported  by  due 
constitutional  authority,  is  found  to  be  prohibited  by  some 
express  hi  junction  of  the  Constitution. 

I  submit  to  the  Court  that,  upon  the  established  rules  of 
constitutional  construction,  in  dividing  powers  and  in  as 
signing  or  accepting  means  towards  powers,  familiar  to  the 
Court,  it  must  be  for  one  or  other  of  these  reasons,  if  at  all, 
that,  this  exercise  of  authority  attempted  in  this  act  con 
cerning  a  subject  which  belongs  to  the  sphere  of  government, 
is  unconstitutional.  Now,  I  submit  that  this  exercise  of 
authority  by  Congress  is  no  encroachment  upon  any  con 
stitutional  power  of  the  States  concerning  the  subject  of 
legal  tender.  Whether  or  not  it  be  withheld  from  the  Fed 
eral  Government,  whether  or  not  it  be  prohibited  to  the 
Federal  Government,  its  exercise  is  no  encroachment  upon 
any  authority  concerning  the  subject  that  is  reserved  to  the 
State  Governments.  It  must  pass  out  of  the  domain  of  all 
government,  if  it  does  not  exist  in  the  Federal  Government 
and  is  not  to  be  found  in  the  State  governments. 

The  principal  argument  in  support  of  the  pretension  that 
the  regulation  of  legal  tender  falls  of  itself,  without  regard 
to  particular  provisions  in  the  Constitution  on  the  subject, 
within  the  domain  of  State  authority,  is,  that  it  has  to  do 
with,  and  is  at  the  service  of,  the  government  that  has 
charge  of  the  general  mass  of  personal,  domestic  rights  and 
interests,  which  belong  confessedly  to  the  administration 


LEGAL  TENDER  CASE  539 

of  the  State  go vernments ;  that,  in  the  contracts  of  the  people, 
the  relations  of  debtor  and  creditor,  and  the  enforcement 
of  the  laws  for  the  collection  of  debts,  fixing  the  standard  at 
which  debts  are  to  be  measured  when  pursued  at  law,  and 
when  the  authority  of  the  government  is  to  be  exercised 
for  their  compulsory  collection,  it  belongs  to  the  State 
governments. 

Now,  at  the  outset,  let  us  say  that  this  presumption  en 
tirely  fails  of  due  support  in  the  nature  and  reason  of  the 
case,  in  regard  to  all  that  mass  of  personal  rights  and  inter 
ests  that,  in  the  very  frame  of  the  Federal  Constitution,  and 
at  the  bottom  of  the  motive  which  led  to  its  formation,  were 
to  be  withdrawn  from  absolute  State  control.  I  refer  to  all 
those  private  interests  and  relations  as  they  arise  between 
citizens  of  different  States,  and  as  they  arise  between  citizens 
of  the  United  States  and  foreigners.  So  far,  then,  as  it 
seems  appurtenant  to  the  administration  of  private  rights 
and  interests,  there  is  no  presumption  that  the  regulation  of 
legal  tender  in  the  settlement  of  transactions  between  citi 
zens  of  different  States,  or  citizens  of  the  United  States  and 
foreigners,  should  be  accorded  to  the  State  governments. 
The  presumption  is  all  the  other  way — that  the  final  deter 
mination  of  these  rights  and  interests  by  the  impartiality  of 
the  General  Government,  should  draw  into  the  Federal 
authority  a  control  over  the  State  tribunals  and  the  State 
laws,  in  regulating  commerce  by  statute,  as  well  as  by  judi 
cial  decision,  between  the  States  and  with  foreign  nations. 

But  that  presumption  which,  at  the  outset,  is  thus  divided, 
ceases  to  have  any  weight,  I  submit,  in  the  judicial  mind 
when  we  find  that  the  whole  regulation  of  the  money  of  the 
country,  has  been  deliberately,  exclusively,  peremptorily 
assigned  to  the  General  Government,  and  that  legal  tender, 
which,  as  Mr.  Mills  says,  in  his  Political  Economy,  seems  to 
be  inseparable  from  the  idea  of  money,  should  be  left,  in 
the  distribution  of  powers  between  the  two  forms  of  admin- 


540         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

istration,  to  two  different  and  independent' authorities,  can 
scarcely  be  predicable  of  any  rational  scheme  of  govern 
ment.  Show  me,  in  the  arrangements  between  domestic 
authority  and  general  control,  a  deliberate  conclusion  that 
the  money  of  the  country  shall  be  carried  over  to  the  Federal, 
and  not  left  to  the  State  authorities,  and  I  deduce  a  presump 
tion,  I  respectfully  submit,  that  whatever  is  to  be  done  by 
law  and  government  concerning  legal  tender,  must  by  the 
same  reasoning,  and  on  the  same  motives  of  duty  and  neces 
sity,  be  carried  to  the  General  Government.  Confessedly, 
then,  whatever  general  authority  the  States  have  left  with 
them  concerning  contracts,  debts,  duties,  rights,  and  inter 
ests,  between  citizen  and  citizen,  and  the  enforcement  of 
them  by  law,  so  far  as  all  these  feel  the  modifications,  the 
influence,  the  operation  of  the  money  power  of  the  country, 
they  must  feel  it  as  lodged  in  the  General  Government.  We 
understand,  I  think,  the  wisdom  of  our  ancestors  in  making 
this  distribution  of  authority.  We  are  to  make  a  nation  of 
many  States  as  towards  the  world;  we  are  to  make  a  nation 
of  many  States  as  among  the  States  themselves.  We  are  to 
bring  together  in  bonds  that  unite,  all  that  belongs  to  the 
necessary  conditions  of  union;  and  while  we  will  leave,  will 
sedulously  leave,  all  that  is  of  local  and  domestic  administra 
tion,  without  interfering  with  what  must  properly  belong  to 
the  concerns  they  have  in  common,  we  will,  nevertheless,  as 
sedulously  and  as  firmly,  insist  in  grouping  under  the  powers 
of  the  Federal  Government  all  that  should  subtend  the 
entire  area  of  the  Union.  While,  therefore,  they  have  the 
arrangement  of  their  courts  and  laws,  of  their  process  and 
their  methods  of  proceeding,  yet  the  subject  of  the  solution 
of  debt  by  money,  we  hold  as  appurtenant  to  the  interests 
which  bring  them  into  one  union, — that  therefore  the  Gen 
eral  Government  must  control  it. 

Now,  has  not  Congress — has  not  the  Federal  Govern 
ment — the  whole  power  over  the  money  of  this  country?     I 


LEGAL  TENDER  CASE  541 

am  not  now  arguing  that  it  has  the  plenary  power  that  may 
be  assigned  to  sovereignty  theoretically,  that  it  is  not  curbed. 
But  has  it  not  all  the  power  that  there  is?  Have  the  States 
any  power?  "Congress  shall  have  power  to  coin  money, 
regulate  the  value  thereof  and  of  foreign  coin."  "To  pro 
vide  for  the  punishment  of  counterfeiting  the  securities  and 
current  coin  of  the  United  States."  "No  State  shall  coin 
money;  emit  bills  of  credit." 

Now,  if  the  constitutional  money  of  the  country  is  that 
which,  in  its  nature,  is  susceptible  of  coinage,  if  that  is  all 
the  money  that  there  may  lawfully  be  in  this  country,  which 
is  one  part  of  the  assumption  of  those  who  oppose  the  con 
stitutionality  of  this  law,  then  confessedly  the  Federal 
Government  has  the  complete  control  over  the  subject. 
Whatever  laws,  therefore,  may  be  made  for  the  collection  of 
debt  by  the  different  States,  however  feeble  or  vigorous  their 
processes  may  be,  when  the  obligation  reaches  the  point  of 
debt  measured  in  money,  it  is  measured  in  the  money  of  the 
Federal  Union. 

But  more  closely  than  this,  though,  as  I  say,  we  must, 
almost  by  a  necessary  presumption,  hold  that,  if  the  power 
of  legal  tender  is  not  suppressed  and  is  not  modified  or  curbed 
by  positive  provision  in  the  Constitution,  all  that  there  is  of 
it  must  be  in  the  Federal  Government  from  the  fact  that  the 
money  power  is  wholly  in  it,  yet  we  see  that  the  subject  of 
legal  tender,  to  avoid  any  controversy  on  the  subject,  has 
been,  as  I  shall  submit,  wholly  taken  away  from  the  States. 

Now,  the  express  prohibition  upon  the  States  is  in  a  form 
which  carries  an  implication,  I  agree,  that  they  may  have 
some  authority  on  the  subject  of  legal  tender — an  implica 
tion,  which,  if  it  stood  alone,  would  need  to  be  observed  as  a 
substantial  faculty  in  the  State  governments — namely, 
that  they  have  some  control  on  the  subject.  It  reads,  "No 
State  shall  make  anything  but  gold  and  silver  coin  a  tender 
in  payment  of  debts." 


542         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

There  might  have  been  a  prohibition  in  the  Constitution 
that  no  State  should  make  any  law  regarding  legal  tender. 
But  that,  if  the  Court  please,  would  have  carried  the  pro 
hibition  into  a  region  where  it  should  not  reach;  for  it  would 
have  covered  the  laws  as  to  the  time  and  manner  and  mode 
and  circumstances  in  which  a  tender,  to  be  effectual  in 
judicial  cognizance,  should  be  accomplished,  with  which  we 
have  nothing  to  do;  for  instance,  that  it  should  be  in  the 
presence  of  witnesses,  that  it  should  be  with  so  many  days 
notice,  or  any  other  minor  arrangements  that  properly 
belong  to  the  administration  of  local  justice.  Therefore, 
this  prohibition  having  only  the  object  of  securing  the  State 
against  the  interference  from  what  should  be  the  subject  of 
legal  tender,  so  far  as  they  were  concerned,  their  authority 
took  this  form:  "No  state  shall  make  anything  but  gold 
and  silver  coin  a  tender  in  payment  of  debts."  But  this 
implication,  that  the  State  may  have  something  to  say  in  its 
legislation  concerning  the  legal  tender,  provided  it  be  kept 
within  gold  and  silver  coin,  is  manifestly  controlled  from 
any  diversity  or  contradiction  in  its  legislation  as  to  the 
legal  tender  which  gold  and  silver  coin  shall  serve,  by  the 
prescription  in  the  affirmative  authority  in  the  General 
Government,  of  the  whole  regulation  of  gold  and  silver  coin. 
Regulation  both  of  its  production  by  coinage  and  of  its 
value  as  legal  tender,  is  the  regulation  that  is  designed  by 
this  ascription  of  authority  to  the  Federal  Government. 

It  is,  therefore,  impossible  to  place  your  finger  upon  a 
single  authority  left  in  the  States,  to  decry  or  to  exalt  any 
form  of  the  legal  money  of  the  United  States,  or  to  pre  cribe 
a  rule  or  manner  in  which  the  coinage  of  the  United  States 
or  the  foreign  coinage  regulated  by  the  United  States,  shall 
serve  as  a  tender,  otherwise  than  as  according  to  the  regu 
lation  and  the  coinage  which  the  Federal  Government  shall 
have  established. 

I  submit  that  this  argument  which  will  be  found  running 


LEGAL  TENDER  CASE  543 

through  these  cases  that,  without  an  act  of  Congress,  in 
terms  undertaking  to  say  that  a  certain  amount  of  gold 
bullion  pressed  into  the  shape  of  an  eagle,  having  the  image 
and  superscription  of  our  Government's  authority,  shall  be 
a  legal  tender  at  its  face,  without  any  such  express  assign 
ment  of  efficacy  to  it  when  it  is  coined  into  eagles, — that  it 
is  when  coined  into  eagles — this  value  of  bullion — ten  dol 
lars — made  a  legal  tender  all  over  the  United  States  wherever 
ten  dollars  is  the  measure  of  obligation.  And  if  this  author 
ity  is  exercised  only  in  this  form  and  to  this  extent  of  coin 
age  and  regulation  of  value  for  gold  and  then  for  silver  by 
the  Federal  Government,  may  I  be  told  that  a  State  has  a 
right  to  say  that  the  gold  dollars,  the  gold  eagles,  to  which 
you  have  assigned  this  value,  shall  not  be  a  legal  tender,  and 
that  the  silver  dollars  only  shall?  Is  not  that  decrying  the 
regulation  and  the  money  regulated  by  the  Federal  Govern 
ment,  if  the  gold  eagles  are  proscribed  from  service  as  a 
measure  of  debt?  Any  implication,  therefore,  that,  in  the 
States,  there  is  left  any  authority  to  legislate  concerning 
legal  tender  in  regard  to  the  weight  or  value,  or  efficacy  or 
preference  of  gold  or  silver  coins,  either  foreign  or  of  our 
Federal  coinage,  is  wholly  illusory.  The  prohibition  to  the 
States  does,  by  implication,  give  authority  concerning  the 
form  and  circumstances  of  law  regulating  tender,  as  respects 
the  time  of  day  at  which  it  may  be  made,  the  presence  of 
witnesses,  the  presence  of  the  coin,  the  substitute  of  paper 
money  as  adequate,  if  no  demand  is  made  by  the  creditor 
that  the  coin  shall  be  produced,  and  other  regulations  of 
that  kind.  But  of  all  that  relates  to  the  measure  and  effi 
cacy  of  gold  and  silver  in  the  payment  of  debts  in  any  State 
of  the  Union,  the  Federal  Constitution  by  the  prohibition  on 
the  States  to  make  anything  but  gold  and  silver  coin  as 
tender,  and  by  the  ascription  to  the  Federal  Government 
of  the  whole  regulation  of  the  gold  and  silver  coin  of  the 
country,  has  left  nothing  in  the  States. 


544         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

And  this,  if  the  Court  please,  is  precisely  what,  a  priori, 
we  should  have  expected.  Certainly  you  are  not  to  have 
two  governmental  regulations  in  this  country  about  legal 
tender.  If  you  have  two,  and  one  of  these  is  capable  of 
being  diversified  into  varieties  of  policy  by  forty  different 
States,  what  have  you  accomplished  in  assigning  the 
money  power  to  the  Federal  Government?  What  have  you 
done  in  giving  Congress  the  control  over  commerce  between 
the  States  and  with  foreign  nations,  if  this  first  implement 
of  traffic,  money,  the  measure  of  value  and  medium  of  ex 
change,  is  not  capable  of  regulation  by  Congress?  It  falls 
within  the  general  policy,  therefore,  that  what  could  not  be 
left  to  diversity  of  legislation  must  be  lodged  where  unity 
could  have  dominion. 

I  may  be  permitted  to  refer,  as  a  very  brief  indication 
that  this  was  the  effect,  and  this  the  motive,  of  the  provision 
on  this  subject  in  the  Federal  Constitution,  to  a  short  pas 
sage  in  a  letter  of  the  Connecticut  delegates  to  that  State, 
commending  the  Federal  Constitution  to  it  for  adoption. 
They  were  Mr.  Sherman  and  Mr.  Ellsworth.  It  is  quoted 
on  page  9  of  my  brief,  as  follows:  "The  restraint  on  the 
legislatures  of  the  several  States,  respecting  emitting  bills 
of  credit,  making  anything  but  money  a  tender  in  payment 
of  debts,  or  impairing  the  obligation  of  contracts  by  ex  post 
facto  law,  was  thought  necessary  as  a  security  to  commerce  in 
which  the  interest  of  foreigners,  as  well  as  of  the  citizens  of 
different  States,  may  be  affected." 

It  was,  then,  within  that  motive  which  carried  a  large 
body  of  principal  powers,  and  of  necessary  means  in  execu 
tion  of  those  powers,  to  the  Federal  Government  that  this 
provision  was  incorporated  in  the  Constitution,  and  the 
rigor  with  which,  in  the  consideration  of  the  subject  when 
framing  the  Constitution,  all  possible  authority,  even  with 
the  consent  of  Congress,  was  withheld  from  the  States,  is 
shown  by  the  course  of  the  debates.  As  it  stood  in  the 


LEGAL  TENDER  CASE  545 

report  of  the  "Committee  on  Detail,"  the  provision  was 
this:  "No  State,  without  the  consent  of  the  legislature  of  the 
United  States,  shall  emit  bills  of  credit,  or  make  anything 
but  specie  a  tender  in  payment  of  debts."  But  this  was 
rejected  under  the  peremptory  motive,  that  what  belonged 
to  the  Federal  Government  should  not  be  yielded  tempora 
rily,  under  any  possible  consideration,  to  the  dominion  of  a 
State. 

Having  thus  disposed  of  any  scintilla  of  governmental 
power  on  the  subject  of  legal  tender,  in  the  value  and  in  the 
substance  to  be  used,  being  lodged  hi  the  States,  it  is  neces 
sary  now  to  see  whether  there  are  any  positive  prohibitions 
upon  the  Federal  Government  defining,  limiting,  curbing, 
its  authority  on  the  subject.  And  I  am  sure  I  need  not  argue 
in  support  of  this  proposition,  that  the  Constitution  con 
tains  no  word  of  prohibition,  of  limitation,  or  of  exception 
touching  either  of  these  questions. 

First,  the  regulation  of  tender  in  payment  of  debts.  It 
would  have  been  very  easy  to  have  included  in  the  Constitu 
tion  an  absolute  prohibition  or  a  modifying  authority  and 
restrictive  power;  but  there  is  not  one  word  of  prohibition, 
of  limitation  or  of  exception  in  regulation  of  this  means  and 
appliance  of  government,  to  wit,  legal  tender,  to  be  found 
in  the  Federal  Constitution. 

Second,  there  is  not  one  word  of  prohibition,  limitation,  or 
exception,  in  regulation  of  money,  its  currency,  and  its 
efficacy  in  the  payment  of  debts.  There  may  be  a  limita 
tion  as  to  what  money  is  or  may  be;  but  there  is  none  affixed 
to  this  affirmative  authority  concerning  it. 

Third,  it  is  equally  true  that  there  are  no  such  words  of 
restriction,  limitation,  or  prohibition,  touching  the  form, 
vehicles,  terms,  or  conditions,  in  and  on  which  the  public 
credit  can  be  issued  by  the  Government  in  the  performance 
of  its  constitutional  duties  or  the  exercise  of  its  constitutional 
powers — none  whatever;  no  limitation  of  the  amount,  no 

37 


546         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

limitation  of  the  terms,  or  of  the  conditions,  or  of  the  means, 
to  constitute  currency,  to  give  credit,  and  to  accomplish 
the  objects  imperatively  demanded  to  be  executed  by  the 
Government. 

Fourth,  there  is  no  such  prohibition,  limitation  or  excep 
tion  touching  the  regulation  of  contract  by  the  General 
Government,  except  indeed  what  would  be  implied  from  the 
nature  of  government,  that  all  its  bankrupt  laws  are  to  be 
uniform.  We  have  thus  far  cleared  the  subject  of  two  impor 
tant  considerations:  first,  the  States  have  no  authority  in 
the  premises;  second,  the  Federal  Government,  in  terms, 
submits  to  no  restriction,  no  limitation,  no  prohibition  in 
the  regulation  of  this  subject. 

Now,  I  contend,  may  it  please  the  Court,  that  these  prop 
ositions  alone  exclude  the  conclusion  that  the  Federal 
Government  has  not  authority  in  the  matter  of  legal  tender, 
as  inconsistent  with  all  established  rules  of  constitutional 
construction.  The  general  notion  of  our  Government  is 
this:  that,  as  between  the  Federal  Government  and  the 
States,  the  Constitution  is  to  divide  the  powers  of  govern 
ment  as  the  welfare  of  the  people  has  suggested  to  the  wisdom 
of  its  framers;  that  what  the  States  should  not  retain  or 
possess,  the  General  Government  should  have;  that  what 
the  General  Government  does  not  have,  the  States  should 
possess.  Then  there  is  another  fundamental,  perfectly 
intelligible  idea  running  through,  not  only  our  Constitution 
but  the  constitution  of  every  free  people  or  of  every  people 
advancing  to  freedom,  and  that  is,  that  a  certain  area  of 
personal  rights  and  personal  immunities  shall  be  withheld 
from  all  government  and  left  to  the  individual,  independent : 
rights  of  conscience,  freedom  of  speech,  freedom  of  the  press, 
which  has  come  to  be  added  as  another  form  of  freedom  of 
speech — all  those  ideas  with  which  we  are  so  familiar,  which, 
in  the  important  stages  of  the  progress  of  political  science 
are  not  accorded  to  any  government.  But,  in  the  original 


LEGAL  TENDER  CASE  547 

design  of  the  Federal  Constitution,  it  was  not  thought  very 
important  to  take  notice  of  this  area  of  individual  and  per 
sonal  rights,  because  so  long  as  the  General  Government  took 
only  the  powers  accorded  to  it,  and  left  the  rest  to  the  States, 
it  was  for  the  States  in  their  constitution  to  discriminate 
between  what  they  would  regard  as  properly  within  the 
service  of  government  and  what  should  be  left  to  the  free 
dom  of  the  citizens.  In  that  way  it  is  explained  that  the 
original  Constitution  had  scarcely  anything  that  could  be 
regarded  in  the  nature  of  a  bill  of  rights.  And  although 
contemporaneously,  that  defect  was  noticed,  and  its  supply 
promised  in  some  way,  should  the  Constitution  be  adopted, 
it  was  not  until  the  amendments  were  introduced  that  any 
thing  in  the  nature  of  a  bill  of  rights  in  the  Federal  Constitu 
tion  was  found.  That  necessity  and  wisdom,  for  such  I 
regard  it,  came  from  this :  that,  although  the  original  idea  of 
leaving  the  States  to  discriminate  between  their  powers  of 
government  and  what  they  would  leave  to  their  people,  was 
just,  yet  the  very  nature  of  the  frame  of  the  Government,  of 
limited  scope,  yet  with  sovereign  powers  within  that  scope, 
carried  a  possibility  and  a  peril  of  encroaching,  in  the  exer 
cise  of  the  powers  within  that  scope,  upon  the  rights  of  the 
citizen. 

However,  it  was  feared  that,  although  there  was  no  ex 
press  power  given  to  Congress  whereby  it  could  make  a  law 
respecting  religion  or  abridging  the  freedom  of  the  press, 
yet  there  might  be  found  in  the  exercise  of  the  affirmative 
powers  accorded  to  it,  a  temptation,  or  a  need,  in  the  opin 
ion  of  the  legislature,  to  encroach  upon  this  domain  of  indi 
vidual  rights.  It  was,  consequently,  provided,  in  limita 
tion  of  the  express  powers,  that  they  should  not  be  construed 
to  contemplate  a  possibility  of  the  invasion  of  this  sphere  of 
personal  rights.  But,  when  we  are  dealing  with  a  subject 
that  has  no  concern  with  personal  rights,  is  no  part  of  indi 
vidual  manhood,  but  is,  in  its  very  nature,  a  regulation 


548         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

framed  for  society  and  under  its  authority,  then  you  have 
this  only  to  consider,  whether  this  power,  belonging  to 
government,  is  limited  in  the  Constitution  or  is  assigned  to 
the  States. 

Now,  to  hold  otherwise  is  to  hold  that  a  certain  subordi 
nate,  administrative  means,  familiar  to  the  experience  of  all 
government  as  a  part  of  its  financial  system,  as  well  as  its 
regulation  of  justice  among  the  citizens,  has  been  expressly 
prohibited  to  the  State  governments,  has  not  been  added  to 
the  immunities  of  the  citizens,  has  not  been  withheld  by  any 
express  prohibition  from  the  General  Government,  and  yet 
by  some  insensible,  unnoticed  evaporation  in  the  process  of 
distributing  powers  between  the  two  Governments,  passed 
out  of  the  resources  of  government  altogether.  Now,  do 
we  not  all  know  that,  if  this  exercise  of  legislative  authority, 
which  Congress  has  deemed  to  be  lawful,  was  needed  and 
was  useful,  and  yet  was  not  permitted  to  the  Federal  Gov 
ernment,  the  State  governments  could  not  have  given  us  any 
aid?  The  Constitution  prohibited  it.  It  is,  then,  left  out 
of  government. 

Now,  I  submit  that  the  true  presumption  and  implication 
is,  that  when  the  prohibition  of  what  belongs  to  government, 
is  applied  to  the  States,  it  is  understood  to  belong  to  the 
General  Government — I  say,  what  belongs  to  government, 
what  is  necessarily  a  part  of  government.  If  that  be  denied 
to  a  State,  the  presumption  then  arises  that  it  falls  within 
the  means  and  appliances  that  should  be  at  the  service  of 
the  general  and  common  powers  of  government  applied  to 
the  common  interests.  There  may  be  a  presumption  that, 
if  the  sum  of  political  authority  which  is  necessary  and  use 
ful  in  government  has  been  diminished  and  curtailed  in  the 
division  of  it  between  the  States  and  the  Union,  you  may 
find  more  of  it  on  one  side  or  more  of  it  on  the  other ;  you  may 
have  rules  of  construction,  prejudices,  theories,  that  will 
carry  more  on  the  one  side  or  more  on  the  other;  but  there 


LEGAL  TENDER  CASE  549 

is  no  presumption  that  the  arm  of  government  is  shortened 
by  this  division  of  its  authority,  unless  you  add  it  to  the 
immunities  of  the  individual.  As  a  matter  of  direct  con 
stitutional  authority,  the  mode  of  suppressing  a  power  of 
government,  that  is,  within  the  ordinary  means  and  appli 
ances  of  government,  is  by  a  prohibition  to  both  the  Federal 
Government  and  the  State  governments. 

Now,  I  do  not  by  this  carry  any  conclusion  or  argument 
that  principal  powers  of  government  go  by  inference,  but 
that  what  are  means  and  appliances  in  aid  of  government 
enure  to  the  service  of  that  government  that  has  the  prin 
cipal  duty  imposed  upon  it,  in  the  absence  of  prohibition. 
There  are  several  instances  of  this  double  prohibition  by 
which  there  is  a  suppression  of  a  certain  faculty  of  govern 
ment.  Both  the  Federal  Government  and  the  State  gov 
ernments  are  prohibited  from  granting  any  title  of  nobility; 
both  are  prohibited  from  passing  any  ex  post  facto  law;  both 
are  prohibited  from  passing  a  bill  of  attainder.  All  these 
proceed  upon  the  ground  that  either  of  these  governments, 
within  its  powers  and  duties,  might  have  had  recourse  to 
one  or  the  other  or  all  of  these  subordinate  and  administra 
tive  applications  of  authority:  the  General  Government,  in 
support  of  its  duties  to  build  up  and  strengthen  the  national 
polity,  might  claim  to  make  distinctions  of  rank  in  the  army 
or  in  the  civil  service  that  should  have  a  permanent  charac 
ter;  the  States,  within  their  dominion,  might  claim  the  same 
as  a  subordinate,  ancillary  administrative  means.  So 
with  ex  post  facto  laws;  and  so  with  bills  of  attainder — each 
passing  bills  of  attainder  within  the  sphere  of  treason  per 
petrated  against  either  government.  There  you  have  a 
suppression  of  certain  powers  of  government  which  are  not 
left  in  our  system  at  all,  just  as  you  have  an  enlargement  of 
the  area  of  personal  immunities  by  provisions  affirmatively 
in  the  nature  of  a  bill  of  rights.  But  our  Constitution  con 
tains  one  instance  of  this  double  prohibition  of  what  must 


550         SPEECHES  OP  WILLIAM  MAXWELL  EVARTS 

be  regarded,  in  its  nature,  as  a  subordinate  means.  I  refer 
to  the  prohibition  of  exacting  revenues  from  exports.  Now, 
what  is  more  in  the  nature  of  a  subordinate  means  than  that? 
Apparently  that  should  be  at  the  service  of  every  simple 
government.  Under  what  motive  was  that  prohibition 
made?  It  was  made  in  view  of  the  difficulties  of  determin 
ing  whether  the  States  or  the  National  Government  should 
control  duties  on  exports.  The  power  was  denied  to  both 
as  a  source  of  revenue,  with  this  limitation,  that  a  State  may 
lay  a  duty  on  exports  in  support  of  its  inspection  laws;  but 
the  revenue  arising  therefrom  must  go  into  the  Treasury 
of  the  United  States.  Practically,  revenue  on  exports  is 
excluded  from  the  powers  of  both  governments,  not  by 
inference,  but  by  express  prohibition.  This  was  fully  under 
stood  during  the  late  Civil  War  when  the  propriety  and 
necessity  of  looking  to  exports  for  some  measure  of  revenue, 
was  considered  by  Congress,  and  the  express  prohibition  in 
the  Constitution  was  regarded,  as  every  express  prohibition 
should  be,  as  final  on  the  subject. 

The  Tenth  Amendment  of  the  Constitution  seems  to 
me,  hi  its  just  construction,  to  support  this  implication  from 
the  denial  of  a  power  to  the  State  governments,  that  it  is 
in  its  nature  subordinate  to  administration  under  the  general 
power  of  the  Federal  Government,  that  it  is  with  the  Gen 
eral  Government;  for  the  language  of  that  amendment  was 
intended  to  be,  and  justly,  a  barrier  against  implications  of 
affirmative  powers.  This  is  the  provision:  "The  powers 
not  delegated  to  the  United  States  by  the  Constitution,  nor 
prohibited  by  it  to  the  States  are  reserved  to  the  States 
respectively,  or  to  the  people." 

Of  course,  then,  anything  that  is  prohibited  to  the  States, 
you  cannot  treat  as  reserved  to  the  States ;  and  as  to  whether 
it  is  reserved  to  the  people,  that  primarily  is  a  question  be 
tween  the  States  and  their  people.  If  it  is  wholly  withheld 
from  the  States,  it  cannot  be  a  question  whether  the  people 
should  have  it  as  between  them  and  their  State  government. 


LEGAL  TENDER  CASE  551 

Never  overlooking  the  principle  that  this  is  a  Govern 
ment  of  affirmative  powers  to  be  found  in  the  Constitution, 
I  submit  that,  under  the  language  of  this  Tenth  Amend 
ment,  a  means  prohibited  to  the  State  is  presumptively 
within  the  authority  of  the  Federal  Government  or  within 
the  limits  of  its  principal  powers.  If,  then,  whatever  regu 
lation  of  legal  tender  is  possible  in  our  Government,  is  with 
the  General  Government,  there  are  but  three  ways  in  which 
it  can  be  disposed  of:  either  the  Constitution  has  fixed  it, 
which  it  might  have  done;  it  might  have  declared  in  so  many 
words,  that  legal  tender  in  payment  of  debts,  as  the  supreme 
law  of  the  land,  is  and  shall  be  current  coin  authorized  by 
the  General  Government;  or,  there  is  no  legal  control  what 
ever;  or,  Congress  has  some  authority  in  the  premises,  and 
whether  that  measure  of  authority  be  large  or  small,  all  of  it 
resides  in  the  General  Government. 

Now,  it  is  very  plain,  as  I  have  heretofore  stated,  that 
there  is  nothing  in  the  Constitution,  in  terms,  fixing  the 
legal  tender  of  the  country.  If  the  power  to  create  money 
and  fix  its  value  carries  any  power  of  legislation, — if  the 
other  enumerated  powers  of  Congress  carry  any  power  of 
legislation,  then,  as  within,  anii  in  aid  of,  those  powers, 
Congress  has  it.  We  come,  then,  down  to  the  question, 
whether  under  the  description  of  legal  and  necessary  legis 
lation  in  support  of  and  in  execution  of  the  powers  of  this 
Government,  Congress  has  that  power. 

Now,  I  do  not  hold  that  these  notes  of  the  Government  are 
coined  money,  or  that  their  issue  or  authority  depends  at  all 
upon  the  fact  that  they  are  coined  money.  They  are 
promises  of  the  Government;  they  are  debts  of  the  Govern 
ment.  They  are  expressed  in  dollars  as  the  measure  of  the 
Government's  debt  and  promise,  and  those  dollars  thus 
named  as  the  measure  of  the  Government's  debt  and  prom 
ise,  are  the  dollars  of  the  Federal  Constitution.  A  promise 
is  not  performance,  and  the  dollar  is  yet  to  appear  if  these 


552         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

promises  are  redeemed  in  performance  of  the  promise — and 
the  dollar  is  a  coined  dollar  of  the  United  States  or  of  foreign 
countries  accepted  by  the  United  States  legislation.  "The 
United  States  will  pay  the  bearer  ten  dollars.  Payable  at 
the  Treasury  of  the  United  States  in  New  York."  And 
"This  note  is  a  legal  tender  for  all  debts,  public  and  private, 
except  duties  on  imports  and  interest  on  the  public  debt,  and 
is  receivable  in  payment  of  all  loans  made  to  the  United 
States." 

As  I  have  said,  the  issue  of  that  promise  is  constitutional; 
it  is  within  the  authority  of  Congress  to  provide  for  its  per 
formance;  it  is  within  the  authority  of  Congress,  provided 
no  excess  of  power  is  resorted  to  for  that  purpose,  to  secure 
its  acceptance  and  currency  with  the  people  as  a  promise  of 
the  Government  to  pay  dollars.  There  is  this  further  pro 
vision,  covered  by  the  legislative  promise  in  the  section  under 
which  this  currency  is  issued,  that  at  any  time  this  form  of 
the  public  debt  may  be  converted  in  sums  of  fifty  dollars  or 
multiples  of  fifty  into  another  form  of  the  public  debt — a 
postponed  loan — the  interest  of  which  is  payable  in  coin  and 
the  principal  in  coin.  These  are  the  provisions,  and  all,  I 
submit,  are  constitutional. 

The  Government  has  proceeded  to  say  further  and  inter 
mediate  to  the  issue  of  this  form  of  public  debt  and  its  pres 
entation  by  the  holder  for  redemption  in  money  or  for  con 
version  into  the  postponed  loan  of  the  Government,  it  shall 
pass  from  hand  to  hand  among  the  people  of  this  country  as 
a  satisfaction  of  their  private  debts.  This  is  the  feature  to 
be  considered.  Now,  what  are  some  of  the  principal  pur 
poses  of  money?  It  is  a  measure  of  value  and  also  a  medium 
of  exchange.  As  a  measure  of  value  money  may  rest  in 
account;  there  may  be  money  of  account,  which  has  no  coin 
to  represent  it,  but  which  serves  the  purpose  of  a  measure  of 
value  in  computation ;  so  that  a  bale  of  cotton  or  a  cask  of 
wine  which  you  cannot  in  their  material  bulk  make  a  common 


LEGAL  TENDER  CASE  553 

measure  of  value,  yet  being  worth  so  many  pounds  and  shill 
ings  may  be  deemed  sufficient  in  account.  As  a  medium  of 
exchange,  which  is  the  purchasing  power  of  money,  the  great 
science  of  money  is  that  it  should  retain  this  purchasing 
power  in  the  confidence  of  the  community,  and  provided 
that  permanent  confidence  at  a  fixed  standard  can  be  se 
cured  in  favor  of  any  money,  the  less  the  intrinsic  value  of 
wealth  that  is  put  into  money,  the  better  for  all.  The  gold 
money,  the  silver  coin,  is,  as  Mr.  Mill,  in  his  Political  Econ 
omy,  says,  but  a  form  of  tickets  or  orders  by  which  the  holder 
is  authorized  to  obtain  whatever  he  needs,  and  the  confi 
dence  that  these  tickets  and  orders  will,  under  all  circum 
stances,  obtain  what  he  needs,  is  the  value  of  the  contrivance 
of  money  as  adopted  by  civilized  nations;  and,  as  he  adds, 
aside  from  this,  and  he  is  no  partisan  of  paper  money,  he 
abhors  inconvertible  paper  money  as  much  as  any  one  can 
do, — as  a  contrivance  merely  to  adjust  these  relations, 
money,  he  says,  is  the  most  insignificant  thing  in  the  world. 
The  intrinsic  value  of  metallic  money  serves  only  this 
purpose:  there  is  this  self-acting  check  against  its  excessive 
use,  that  no  more  of  it  can  be  issued  than  there  is,  and  none 
of  it  can  be  got  except  by  labor,  which  makes  it  a  standard 
of  value.  It  is  that  self-acting  check  which  makes  the 
metallic  money  the  basis  of  circulation,  to  which  the  whole 
currency  of  every  safe  and  just  government  should  be  an 
chored.  But,  as  we  all  know,  political  science  has  shown 
that,  because  you  must  have  your  currency  anchored  to  this 
natural  and  self-limited  measure  of  value  and  medium  of 
exchange,  it  does  not  follow  that  you  must  limit  the  service 
of  exchange  and  of  measure  of  value  to  that  money,  and  have 
only  the  transactions  to  which  the  specie  of  the  country  may 
be  applied  bodily  and  by  transportation  in  every  transaction. 
Whenever  you  can  give  to  forms  of  public  or  private  credit 
the  true  hope  and  guarantee  that  they  shall  bring  all  the 
money  that  they  purport  to  represent,  then  you  have  en- 


554         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

larged  the  means  and  stimulated  the  activities  of  commerce 
and  of  trade  without  having  shaken  the  basis  of  specie  as  a 
measure  and  as  a  medium.  The  distinction,  therefore,  be 
tween  currency  and  money  is  perfectly  understood;  bills  of 
exchange  being  the  first  form  of  currency  distinct  from 
money,  then  promissory  notes,  then  public  emissions  of 
promises  of  Government,  then  private  bank  notes — all  being 
different  forms  of  credit  or  confidence  that  the  money  they 
promise  shall  be  forthcoming  whenever  the  holder  needs  it. 
So  that  the  expression  of  Mr.  Mill  is  clear,  when  he  says  that 
these  different  forms  of  credit  either  in  the  less  manageable 
form  of  book  debts,  or  bills  of  exchange  or  promissory  notes, 
are  really  currency,  and  in  the  form  of  bank  notes  and  of 
public  notes  of  exchequer,  are  a  form  of  credit  which,  as  it 
seems,  he  very  aptly  describes  as  coined  credit,  while  the 
other  forms  of  credit  are,  so  to  speak,  credit  in  the  ingot  or 
mass,  and  very  aptly  describe  paper  money  in  its  relation 
both  to  credit  or  promise  and  to  value  or  intrinsic  faculty  of 
purchasing. 

Now,  every  nation  coming  into  the  modern  system  of  civili 
zation  at  least  and  having  currency  by  necessity  for  the  free 
dom  of  the  movements  of  its  people  not  limited  to  gold  and 
silver  coinage,  but  to  credit  mixed  with  it  in  all  the  manifold 
forms  that  ingenuity  and  the  science  of  political  economy  has 
invented  and  approved,  has  to  deal  with  that  whole  subject 
of  money  per  se,  and  credit  that  enters  into  currency  in  aid  of, 
pari  passu  with,  any  expansion  of  the  money  arrangements  of 
the  country.  It  has  to  deal  with  it  in  peace  and  in  war;  it 
has  to  deal  with  it  under  circumstances  of  the  greatest  di 
versity.  It  has  to  deal  with  it  according  to  the  powers  of 
government  and  its  wisdom,  under  stress  financial  and  na 
tional. 

When  government,  therefore  is  charged  with  these  duties 
and  responsibilities,  the  question  is,  of  any  attempted  exer 
cise  of  authority,  whether  it  be  within  its  power  and  be  serv- 


LEGAL  TENDER  CASE  555 

iceable  to  its  duty  or  not,  and  that  question  is  to  be  answered 
according  to  the  nature  of  the  exercise,  the  motive,  the  serv 
ice  intended,  and  the  circumstances  under  which  it  is  situ 
ated,  by  the  Government.  Let  me  now  call  the  attention  of 
the  Court  for  a  moment  to  the  difference  in  operation  of  an 
express  power  and  of  an  implied  power.  An  express  power 
whenever  accorded  to  the  Federal  Government  can  be 
exercised  upon  its  own  motives  and  with  no  other  reason  or 
object  of  duty,  except  that  it  is  within  the  express  power. 
Take  the  subject  of  emitting  bills  of  credit  which  was  dis 
cussed  in  the  Constitutional  Convention  as  to  whether  it 
should  be  assigned  as  a  substantive,  enumerated  power  to  the 
Government  of  the  United  States,  and  was  omitted  after  full 
consideration  from  that  list.  If  it  had  been  inserted  as  an 
express  and  substantive  power,  then  the  issue  of  bills  of 
credit  for  any  purpose  would  have  been  within  the  power  of 
the  Government,  that  is  so  far  as  their  emission  went.  Their 
motive  might  have  been  to  ease  the  finances  of  the  country 
under  any  circumstances,  and  in  any  exercise  of  any  power  or 
duty  of  the  Federal  Government.  It  was  excluded.  Take 
the  power  of  chartering  corporations.  That  was  postponed 
as  a  substantive  power  by  Mr.  Pinckney  and  again  by  Mr. 
Madison,  with  certain  limitations.  This  was  excluded  as  a 
substantive  power.  If  it  had  been  included  in  the  Consti 
tution  then  Congress  could  have  established  corporations  in 
its  discretion.  If  that  had  been  inserted  as  a  substantive 
power,  then  Congress  would  have  had  power  upon  its  own 
responsibility  of  reason  and  motive,  without  any  judicial 
amenability  whatever,  to  establish  corporations  of  any 
diversity  and  on  any  subject.  That  was  excluded. 

How  is  it,  now,  about  this  legal  tender  question,  which  is 
specially  under  consideration?  These  notes,  if  not  made 
legal  tender  for  private  debts,  yet  are  an  emission  of  bills  of 
credit  within  the  meaning  of  the  Constitution  of  the  United 
States  which  is  prohibited  to  the  States  and  which  is  not 


556         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

expressly  conferred  on  the  Federal  Government.  The  two 
cases  of  Craig  vs.  the  State  of  Missouri  and  Brisco  vs.  The 
Bank  of  Kentucky,  in  4  Peters  &  11  Peters,  discussions 
familiar  to  the  Court,  show  that  emissions  of  public  debts 
are  bills  of  credit  and  would  be  the  very  things  covered  by 
the  clause  in  the  Constitution,  "emit  bills  of  credit." 

If  a  State  does  it,  they  are  invalid,  and  if  the  United  States 
does  it,  they  may  be  valid  although  no  express  power  is  given 
them,  but,  on  the  contrary,  an  express  power  was  withheld 
from  them  in  the  Constitution,  after  debate.  Here  you  have 
all  the  grounds,  all  the  arguments,  which  bear  upon  the 
matter  of  legal  tender,  on  this  subject.  The  incorporation 
of  the  Bank  of  the  United  States  was  a  subject  which  came 
up  for  discussion,  and  with  it  these  facts  in  constitutional 
history,  that  there  is  no  express  power  to  establish  a  bank, 
and  that  when  it  was  proposed  to  the  convention  to  confer 
an  express  power  of  incorporation,  it  was  withheld.  What 
is  the  reasoning  of  the  Court?  As  an  express  or  substantive 
power,  justifiable  upon  its  own  motives  and  for  its  own  sake, 
it  has  no  place  in  the  Constitution  of  the  United  States. 
You  must  bring  it  within  the  terms  of  means  or  of  legislation 
necessary  and  proper,  within  the  scope  of  some  express  power 
and  upon  its  reason  and  within  its  motives,  or  it  does  not 
exist.  And  the  incorporation  of  the  Bank  of  the  United 
States  was  held  to  be  constitutional  because  under  the  mo 
tives  and  upon  the  reason  and  within  the  limits  as  means  to 
ends,  adapted  and  conducive  and  appropriate,  which  are 
within  the  service  of  enumerated  powers  at  the  disposal  of 
the  Government.  And  so  bills  of  credit,  if  they  came  up 
nakedly  without  this  question  of  legal  tender  and  private 
debt,  would  stand  upon  the  same  reasoning  and  have  never 
been  questioned  as  being  unconstitutional. 

The  difference,  therefore,  between  express  and  implied 
power,  is  not  an  unsubstantial  difference,  although  the  very 
thing  that  might  have  been  raised  to  the  dignity  of  sub- 


LEGAL  TENDER  CASE  557 

stantive  powers  upon  its  own  motives,  has  been  withheld, 
and  the  same  thing  is  introduced  into  legislation  as  means  to 
ends.  The  difference,  I  repeat,  is  essential  and  important, 
and  no  true  liberty  of  means  towards  ends,  of  appliances  in 
aid  of  powers,  ever  can  enlarge  the  powers  of  the  Constitu 
tion  of  the  United  States;  for  the  judicial  and  political  theory 
of  these  means  and  appliances,  as  being  lawful,  is  that  they 
are  included  in  the  service  and  in  the  aid  of  the  substantive 
powers. 

Now,  the  authority  to  make  coined  money  a  legal  tender 
by  law  is  included  within  the  express  power  of  regulating  the 
value  of  money;  and  cannot  and  has  not  been  disputed.  It 
is  for  me  to  satisfy  your  Honors,  if  such  be  the  true  construc 
tion  of  the  Constitution,  that  the  making  of  these  emitted 
bills  of  credit  of  the  United  States  a  legal  tender  in  trans 
actions  between  private  parties,  is  within  the  authority  of 
Congress,  as  a  means  necessary  and  proper,  appropriate  and 
adapted,  to  the  discharge  of  the  duties  thrown  upon  the 
Government  of  the  United  States,  by  the  Constitution  and 
in  exercise  of  the  powers  accorded  to  it;  knowing  as  we  do, 
that  unless  it  resides  in  the  Government  of  the  United  States, 
it  does  not  reside  in  the  power  of  the  States,  and  that  the 
political  and  financial  situation  in  which  this  recourse,  always 
possessed  by  governments,  though  denied  to  ours,  is  left 
without  remedy  and  without  succor. 

Now,  I  believe  that  the  framers  of  the  Constitution  may 
be  well  understood  to  have  formed  their  Government  for  the 
actual  affairs  of  men  and  the  vicissitudes  of  national  fate. 
They  did  not  expect  to  change  the  nature  of  man  or  to  con 
trol  events,  and  they  did  not  frame  a  government  to  escape 
them,  but  to  meet  them.  They  were  familiar  with  the  con 
ditions  of  peace  and  war  by  the  most  recent  experience,  and 
they  knew,  not  as  matter  of  theory,  but  as  matter  of  fact,  the 
diversity  between  the  burdens  and  responsibilities  and  duties 
which  belong  to  one  state  of  the  nation  and  the  other.  War 


558         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

is  the  state  of  a  nation  which  prosecutes  its  right  by  force; 
peace  is  the  state  of  a  nation  in  which  its  law  prevails  by  its 
authority.  It  is  not  saying  too  much,  that,  without  impos 
ing  any  qualities  upon  these  two  conditions  of  peace  and  war, 
except  what  by  inexorable  necessity  is  demanded  for  war,  as 
in  time  of  peace  all  the  force  of  the  country  is  but  the  aid  and 
minister  of  its  law,  so  in  time  of  war  all  the  law  of  a  country 
is  but  the  aid  and  minister  of  its  force;  it  is  the  situation  of 
the  nation  when  its  force  must  be  displayed  and  exercised 
and  marshaled  and  directed  only  under  the  conditions  that 
it  be  adequate,  proper,  and  seasonable,  to  maintain  the 
public  safety. 

I  give  to  the  law  of  the  country  no  extension  beyond  what 
its  fundamental  charter  gives  it;  but,  within  its  power,  the 
occasions  and  duties  of  a  state  of  war  are  that  the  whole 
strength  of  the  nation  shall  be  marshaled  by  its  legislation 
in  the  most  effective  and  useful  way  to  preserve  the  national 
existence  and  to  attain  peace.  The  laws  by  which  private 
conduct  is  governed  when  the  person  is  safe  and  life  secure, 
are  one  thing;  the  laws  of  self-preservation  in  the  individual 
are  another;  and  one  law  yields  to  another  in  morality 
according  to  the  situation.  "Thou  shalt  not  kill"  is  the  law 
of  peace  and  safety  to  the  individual.  In  preservation  of 
life,  you  may  kill,  is  the  doctrine  and  sanction  of  conduct 
under  those  circumstances.  Our  life  is  to  be  preserved, 
that  it  may  be  regulated  by  morality,  and  the  morality  of  its 
preservation  is,  that  whatever  means  in  strength,  in  wisdom, 
are  at  our  service,  may  be  exercised  according  to  the  stress  of 
the  emergency  in  which  we  are  placed. 

I  shall  give  these  principles  no  extravagant  operation.  I 
agree  that  the  final  law  of  this  Government,  found  in  the 
Constitution,  is  the  curb  and  limit  of  the  political  authority 
just  as  much  as  the  strength  which  nature  has  given  to  man 
is  the  curb  and  limit  of  his  efforts  in  self-preservation.  I 
only  ask  that  you  shall  accord  to  the  framers  of  the  Consti- 


LEGAL  TENDER  CASE  559 

tution,  in  the  judgment  of  their  work  as  applied  to  this 
emergency  in  the  national  situation,  the  wisdom  and  cir 
cumspection  that  belong  to  them,  and  that  is,  that  they 
deemed  a  state  of  war  as  within  the  fortunes  of  the  nation 
they  were  founding,  and  that  they  were  familiar  with  the 
stress  of  war  in  its  demands  upon  the  strength  of  the  nation, 
natural  and  financial. 

Now,  in  the  main  design  in  the  Constitution,  to  carry  to 
the  General  Government  all  that  was  of  common  concern, 
there  is  nothing  more  prominent  than  this :  all  that  belonged 
to  a  state  of  war  was  and  should  be  of  common  concern;  in 
peace  there  was  a  distribution  of  administration  between  the 
General  Government  and  the  States,  but  all  the  exercise  of 
power  and  strength  in  war  was  adopted  by  the  terms  of  the 
Constitution  as  being  of  general  concern  and  not  of  State 
authority,  and  was  comprehended  in  that  larger  reason 
which  carried  over  whatever  was  general,  in  the  power  of  the 
Federal  Government. 

They  had  in  their  minds,  also,  under  the  freshest  ex 
perience,  as  among  the  consequences  of  impressions  that 
war  produces  in  a  nation,  that  the  whole  system  of  money, 
currency  and  credit,  public  and  private,  legal  tenders,  con 
tracts  and  their  enforcement,  and  the  compulsory  payment 
of  debts,  are  subject  to  the  shock  of  war  as  much  as  any 
other  of  the  interests  and  operations  of  a  nation,  and  that  the 
pressure  upon  the  powers  and  duties  of  the  Government  in 
the  event  of  war,  in  respect  to  all  these  subjects,  was  en 
tirely  different  from  what  it  was  in  peace.  They  were  not 
insensible  to  that  fact;  they  had  experienced  that  very 
situation  in  the  conduct  of  the  Revolutionary  War,  that 
while  the  Federal  Government  was  charged  under  the  con 
federation  with  the  operations  of  war  and  their  control,  it 
had  to  look  to  the  States  for  the  execution  of  power  to  aid  it. 
Among  the  very  points,  therefore,  bearing  upon  the  exercise 
of  the  authority  of  war,  this  question  of  legal  tender  was  in 


560         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

their  experience,  and  in  this  precise  form;  that  while  they 
had  authority  to  pledge  the  public  credit  by  the  emission  of 
the  public  securities,  they  had  not  power  to  make  them  a 
legal  tender,  and  they  had  found  that  that  was  a  necessary 
reinforcement  of  their  currency  and  their  value;  that  is,  in 
their  judgment,  it  was.  Whether  they  judged  wisely  or  not, 
is  a  political  question.  In  their  judgment,  they  did.  They 
were  obliged  to  ask  the  States,  just  as  they  were,  to  con 
tribute  by  their  legislation  this  aid  and  help  to  the  credit  of 
the  country  by  their  passing  laws  in  aid  of  the  emissions  of 
the  confederation,  being  legal  tender,  and  the  States  did  it, 
putting  it  upon  the  ground,  as  in  the  legislation  referred  to 
by  Mr.  Potter,  of  upholding  by  penal  sanctions  the  currency 
of  the  money  of  the  confederation,  proscribing  as  an  enemy 
to  the  country  any  man,  who  should  say  or  act  in  derogation 
of  this  faculty  of  the  money,  the  emissions  of  the  confedera 
tion  debt,  being  a  legal  tender.  This  then  was  the  experience 
of  the  framers  of  the  Constitution.  That  is,  of  all  other 
nations,  so  of  this,  as  in  the  past  so  in  the  future,  the  exigen 
cies  of  war  which  demand  the  marshaling  of  the  whole  physi 
cal  strength  and  all  the  financial  resources  of  the  country  in 
aid  of  the  country  struggling  against  foreign  or  domestic 
foes,  there  must  be  a  resort  to  the  means  of  legal  tender  as 
one  of  the  resources  of  government;  and  they  knew  that  in 
the  confederacy  they  had  to  ask  the  State-  for  it,  as  the 
States  had  it,  and  they  knew  what  they  were  going  to  do  on 
the  subject  of  leaving  that  authority  with  the  States. 

Now,  too,  it  is  not  to  be  disguised  that  the  temptations 
and  mischiefs  and  dangers  and  disgraces  of  an  inconvertible 
paper  currency  were  equally  pressed  upon  the  attention  of 
the  framers  of  the  Constitution.  The  actual  condition  of 
the  country  in  the  collapse  and  in  the  delirium,  if  you  please, 
that  had  followed  the  exhausting  war  in  which  the  liberties 
of  the  people  had  been  maintained,  and  all  the  evils  of  the 
public  and  private  credit  of  the  country  that  the  actual 


LEGAL  TENDER  CASE  561 

situation  of  affairs  exhibited,  were  in  their  minds  also.  They 
knew  that  this  potent  service  of  paper  money  in  a  need,  was 
in  danger  of  being  a  master  too  strong  to  be  thrown  off,  sud 
denly  at  least,  when  the  need  had  reached  its  limit. 

Now,  I  say,  the  most  opulent  nation,  and  ours  was  not  an 
opulent  nation  when  the  Constitution  was  formed,  that  the 
most  opulent  nations  had  been  obliged  under  the  stress  of 
war  to  resort  to  this  invigoration  of  the  coined  credit  of  the 
country  to  aid  the  purchasing  power  of  its  public  debt.  This 
was  familiar  to  them  also,  and  they  knew  after  the  war  had 
passed,  and  this  means  had  been  resorted  to,  that  in  the 
experience  of  other  nations  as  well  as  their  own,  the  danger 
of  expanding  it  as  a  power,  or  the  exercise  of  the  power 
beyond  that  need,  was  a  thing  to  be  considered,  and  care 
fully  and  firmly  dealt  with. 

I  submit  to  the  Court,  therefore,  that  the  true  construc 
tion  of  the  arrangement  of  these  conflicting  interests  and 
arguments  of  the  Federal  Constitution,  is  plain,  and  further 
that  it  was  wise,  though,  whether  it  be  wise  or  not,  if  it  be 
plain,  the  judicial  duty  is  satisfied  by  enforcing  it.  It  is, 
that  the  States  of  this  country,  who  were  relieved  by  the  new 
Constitution  from  all  the  burdens  and  responsibilities  of  the 
legislation  and  management  of  war,  should  have  no  author 
ity  that  could  make  legal  tender  out  of  anything  but  intrinsic 
value.  Whatever  stress  in  time  of  peace  may  go  unprovided 
for,  for  disasters  may  happen,  earthquakes  may  happen,  great 
destruction  by  pestilence,  by  flood,  by  fire,  may  disorder  the 
natural  condition  of  the  people  almost  as  much  as  war, — but 
the  feature  of  peace  was  not  of  that  kind  or  nature,  and  as 
the  States  had  none  of  the  powers  and  responsibilities  of  legis- 
ation  and  management  for  a  state  of  war,  this  faculty 
should  be  suppressed  in  them,  although  some  particular  un 
foreseen  stress  might  have  shown  that  a  more  circumspect 
and  more  farsighted  civil  prudence  would  have  given  a 
faculty  of  meeting  this  strange  emergency.  But  practically 


562         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

they  dealt  with  it  in  this  manner;  that  the  States  have  no 
power,  as  we  all  know,  to  liberate  the  legal  tender  and  con 
form  it  to  any  exigencies ;  but  that  the  General  Government, 
whose  money  and  credit — that  is  all  that  it  is — are  to  fur 
nish  all  the  financial  sinews  of  every  possible  war,  should 
have  at  its  disposal  in  this  service,  in  this  necessity  and  within 
this  duty,  this  financial  expedient  of  making  the  public 
securities  a  legal  tender;  else,  what  is  not  to  be  tolerated  in 
any  form  of  society,  an  inexorable  need  and  a  peremptory 
duty  should  miss  a  commensurate  power.  I  do  not  care 
what  structure  it  is,  mechanical  or  civil,  if  you  send  it  forth 
to  meet  an  inexorable  need  and  under  a  peremptory  duty, 
you  must  furnish  the  necessary  power,  and  in  so  far  as  you  fail 
to  do  this,  your  structure  is  imperfect  and  falls  under  the  law 
of  its  own  creation  as  inadequate  to  its  own  obligations  and 
necessities.  Such  structures  may  be  deliberately  made, 
such  structures,  in  the  imperfection  of  human  affairs,  are 
made.  A  ship  may  be  sent  across  the  ocean  for  aught  I 
know,  under  a  deliberate  determination  that,  if  the  wind 
blows  thirty  knots  an  hour,  it  shall  go  to  the  bottom  of  its 
own  structure.  But  when  I  have  a  list  of  the  specifications 
of  the  ship's  structure  and  equipment,  I  want  to  have 
pointed  out  to  me  the  limit  that  made  it  necessary  she  should 
be  a  thirty  knots-an-hour  gale  ship,  and  not  one  to  meet  a  sea 
on  which  she  was  launched  where  the  wind  blows  swifter  than 
that.  So  with  a  government  that  is  launched  to  keep  the 
seas  perpetually,  over  every  commotion  of  the  ocean  of  life, 
and  through  every  storm  of  the  future.  I  wish  when  the 
perils  are  known  and  measured  and  foreseen,  to  have  express 
evidence  that  it  should  yield  rather  than  resort  to  some 
energy  to  save  it.  If  it  be  so,  then  let  it  founder  according 
to  the  predestined  law  of  its  creation. 

This  power  of  legal  tender,  necessary  for  emergencies, 
pernicious  as  a  ready  resource,  shall  not  be  placed  among  the 
enumerated  powers  of  the  Constitution,  because  it  would 


LEGAL  TENDER  CASE  563 

either  be  at  the  service  of  the  Government  as  a  financial 
expedient  on  its  own  motive  and  upon  any  representation 
that  it  was  useful  in  the  service  of  the  community — a  posi 
tion  which  Mr.  Madison  came  very  near  taking  in  his  mes 
sage  to  Congress  when  he  recommended  an  emission  of  bills 
of  credit  without  the  legal  tender  clause,  when  the  credit  of 
the  country  no  longer  required  it,  but  as  a  convenience,  as  a 
medium  of  exchange.  That  illustrates  the  difference.  I 
suppose  the  emission  of  bills  of  credit,  if  an  enumerated 
power  in  the  Constitution,  would  have  been  within  the 
faculties  of  the  General  Government  upon  the  motive  of 
providing  a  currency  merely  without  regard  to  the  needs  of 
the  Government  or  by  aiding  it  by  such  an  emission. 

I  have  no  doubt,  Congress  never  doubted,  that  if  within 
the  implied  powers  of  government,  it  reposes  there  as  a 
means  at  its  disposal  in  aid  of  the  credit  of  the  country,  upon 
its  authority  to  lay  taxes,  to  raise  revenue,  and  to  borrow 
money,  and  to  administer  the  finances  of  the  country.  So, 
too,  this  power  of  resort  to  legal  tender,  as  a  servant  of 
special  duties  and  of  authorities  of  the  General  Government, 
I  place  in  the  implied  fitness  and  necessity  of  it  as  a  means 
under  emergencies  of  supporting  the  power  of  the  Govern 
ment  in  performing  its  duties,  within  its  recognized  obliga 
tion  and  in  aid  of  its  recognized  authority.  Such,  I  think,  is 
the  adjustment  in  the  Constitution  of  these  conflicting 
interests  and  arguments,  and  I  am  at  a  loss  to  perceive  why 
anything  in  the  history  of  this  country  should  show,  either 
in  the  general  course  of  the  Government  or  in  this  last 
emergency,  when  its  safety  required  all  its  power,  any  reason 
to  question  the  wisdom  or  forecast  and  prudence  of  the 
framers  of  the  Constitution,  if  this  be  its  true  construction. 
Under  it,  certainly,  we  have  had  eighty  years  of  government, 
carrying  us  through  peace  with  all  its  vicissitudes  and  through 
the  pressure  of  foreign  war  without  resorting  to  this  as  a 
means  in  aid  of  any  necessity.  It  is  only  when  we  come  to  a 


564         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

civil  war,  the  vastness  of  whose  proportion  and  the  intensity 
of  whose  energy,  have  crowded  within  five  years,  expendi 
tures  from  this  Government  equal  to  the  revenues  of  fifty 
years  of  peace,  that  this  exceptional  and  excessive  expedient 
spoken  of  in  the  ordinary  affairs  of  the  nation,  has  been 
resorted  to. 

Now,  it  is  idle  to  say,  as  is  often  said  in  the  course  of  the 
argument,  that  our  experience  of  eighty  years  of  peace,  and 
of  wars  somewhat  severe,  certainly,  upon  our  financial 
abilities — the  War  of  1812  and  the  War  with  Mexico,  for 
instance — have  been  gone  through  without  a  resort  to  this 
expedient,  and  that  this  should  prove  a  reason  and  be  a 
guide  in  the  construction  of  the  Constitution,  that  no  such 
expedient  can  be  resorted  to.  I  submit  that  it  is  only  when 
some  adequate  and  equal  comparison  that  shows  a  nation 
saved  through  a  stress  and  pressure  equal  to  that  through 
which  we  have  passed  in  the  last  five  years,  without  a  resort 
to  this  expedient,  is  presented  to  us,  that,  in  the  experience  of 
human  affairs,  we  find  any  justification  for  thinking  that  the 
perils  in  which  this  country  was  placed  could  have  been 
passed  through  without  this  resort.  No  simple  government 
that  the  world  ever  saw,  as  far  as  my  knowledge  or  estimate 
of  history  goes,  has  ever  been  able  to  subdue  a  revolt  cover 
ing  so  vast  a  territory  and  so  large  a  population  of  equal 
character  and  condition  with  the  loyal  population  who  came 
to  the  aid  of  the  Government,  as  ours  has  done.  I  be 
lieve  that  no  simple  government  would  be  equal  to  it,  and 
that  it  is  to  the  Federal  distribution  of  authority  that  made 
loyal  States  cope  with  disloyal  States  through  the  common 
agency  of  the  Federal  Government  to  which  the  loyal  State 
adhered,  that  our  success  is  due. 

I  am,  in  the  profoundest  and  extreme  doctrine,  an  admirer 
of  the  State  constitutions,  their  vigor,  energy  and  protection. 
But  you  might  as  well  say  that  the  sick  man  argued  wisely 
who  recounted  to  his  physician  that  he  passed  through  the 


LEGAL  TENDER  CASE  565 

diseases  of  childhood  and  had  never  taken  calomel  as  a  reason 
under  the  congestive  fever  of  the  marshes,  why  he  should  sub 
mit  to  no  other  stronger  doses  than  had  saved  him  from  the 
mumps  and  chickenpox.  Necessities  impose  their  own  meas 
ure:  diseases  their  own  remedy;  and  though  you  may  be 
misguided  and  though  the  remedy  may  be  sometimes  worse 
than  the  disease,  this  false  reasoning  of  refusing  to  make  the 
measure  conform  to  the  actual  situation  before  you  and  sub 
mitting  to  the  wisdom  that  must  be  the  master  of  the  dis 
cretion  and  the  remedy — such  reasoning  I  never  can  under 
stand.  . 

We  must  now  understand,  if  the  Court  please,  how  it  is  and 
why  it  is,  that  the  Federal  Government,  being  charged,  as  I 
have  said,  with  all  the  duty  and  all  the  responsibility  of  the 
conduct  of  the  nation  in  time  of  war,  all  such  things  being 
absolutely  denied  to  the  States  as  well  as  affirmatively  de 
volved  upon  the  Federal  Government, — how  it  is  that  this 
situation  of  the  nation  may  justify,  may  necessitate,  within 
a  national  and  legal  estimate  of  the  adaptation  and  appro 
priateness  of  means  to  ends,  the  particular  measure  which  was 
adopted  by  our  Government  in  the  year  1862.  I  will  but 
call  attention  to  the  powers  I  have  collected  in  the  8th  propo 
sition  of  my  brief,  as  making  up  the  sum  of  powers  as  well  as 
those  distributively  accorded,  I  suppose,  to  the  support  of 
this  exercise  of  legislative  authority.  The  Government  then 
has  power  "To  lay  and  collect  taxes,  duties,  imposts,  and 
excises,  to  pay  the  debts  and  provide  for  the  common  defence 
and  general  welfare  of  the  United  States:"  "To  borrow 
money  on  the  credit  of  the  United  States";  "To  regulate 
commerce  with  foreign  nations  and  among  the  several 
States";  "To  coin  money,  regulate  the  value  thereof,  and  of 
foreign  coin";  "To  declare  war";  "To  raise  and  support 
armies";  "To  provide  and  maintain  a  navy";  "To  pro 
vide  for  calling  forth  the  militia  to  execute  the  laws  of  the 
Union,  suppress  insurrections,  and  repel  invasions";  "To 


566         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

provide  for  organizing,  arming,  and  disciplining  the  militia 
and  for  governing  such  part  of  them  as  may  be  employed  in 
the  service  of  the  United  States";  To  guarantee  republican 
governments  to  the  States  and  protect  them  against  invasion 
and  domestic  violence. 

I  will  not  draw  attention  to  the  inhibitions  upon  the 
States  to  engage  in  war  or  keep  the  means  of  war.  A  war  as 
between  themselves  was,  of  course,  denied  to  them  in  the 
very  nature  of  the  institution  of  a  common  government;  a 
war  against  foreign  nations  was  denied  to  them  as  belonging 
to  the  General  Government  to  regulate  all  the  relations  and 
to  determine  upon  the  condition  of  peace  and  war,  ad  extra. 
Here,  then,  you  have  collected  in  this  mass  of  powers  all  the 
duties,  all  the  authorities,  all  the  responsibilities  both  in  re 
gard  to  military  operations  and  array,  and  to  financial  man 
agement,  that  any  nation  ever  had. 

I  do  not  now  discuss  the  distribution  between  executive  and 
legislative  power  in  the  Government  of  the  United  States.  I 
say  that,  as  between  the  General  Government  and  the  States, 
and  as  between  the  General  Government  and  foreign  nations, 
all  the  powers,  all  the  duties,  all  the  obligations,  that  any 
nation  ever  had  or  could  have,  are  deposited  with  the  General 
Government.  Again,  by  an  express  provision  in  the  Con 
stitution  as  well  as  by  necessary  intendment,  all  the  legisla 
tion  that  is  necessary  and  appropriate  to  the  performance  of 
those  duties,  the  exercise  of  those  powers,  the  discharge  of 
those  responsibilities,  and  the  crowning  end  of  all,  the  safety 
of  the  nation,  should  belong  and  does  belong  to  the  General 
Government.  So  far  we  must  all  agree. 

Now,  the  judicial  criterion  of  the  appropriateness  and  the 
adaptation  of  means  or  of  legislation  to  ends,  and  in  support 
of  the  powers  and  duties  of  the  Government  I  need  not  en 
large  upon.  It  is  not  a  political  criterion;  it  is  not  a  criterion 
of  wisdom  or  distinction.  It  is  but  a  judicial  criterion — that 
so  long  as  we  treat  our  Constitution  as  a  Constitution  of 


LEGAL  TENDER  CASE  567 

limited  authority,  subject  to  judicial  interpretation  and  to 
judicial  curb  of  all  violations  of  it,  it  must  be  guarded  and 
must  be  bravely  and  firmly  administered  by  this  Court; 
but  not  beyond  the  judicial  criterion  as  laid  down  by  the 
celebrated  Chief  Justice  who  framed  so  much  of  the  opera 
tive  power  of  our  Constitution  in  his  elucidation  of  its  prin 
ciples  and  wisdom,  and  of  its  methods.  This  rule  acceptable 
to  all  for  its  intrinsic  and  perfect  reason,  has  been  established : 
"The  sound  construction  of  the  Constitution  must  allow  to 
the  national  legislature  that  discretion  with  respect  to  the 
means  by  which  the  powers  it  confers  are  to  be  carried  into 
execution,  which  will  enable  that  body  to  perform  the  high 
duties  assigned  to  it  in  the  manner  most  beneficial  to  the 
people." 

Let  us  look  at  that  rule,  as  it  contemplates  a  state  of  war, 
the  duty  of  the  General  Government  in  time  of  war,  and  the 
powers  assigned  to  it  in  discharge  of  those  duties.  "There 
must  be  the  means  which  will  enable  Congress  to  perform 
the  high  duties  assigned  to  it  in  the  manner  most  beneficial 
to  the  people";  not  that  it  may  use  such  means  as  barely  to 
accomplish  the  object,  but  to  use  them  in  a  manner,  to  be 
most  beneficial  to  the  people.  Again,  "Let  the  end  be  legiti 
mate,  let  it  be  within  the  scope  of  the  Constitution  and  all 
the  means  which  are  appropriate,  which  are  plainly  adapted 
to  the  end;  which  are  not  prohibited,  but  consist  with  the 
letter  and  spirit  of  the  Constitution,  are  constitutional." 
Under  that  the  Bank  of  the  United  States  was  sustained 
in  time  of  peace;  under  that  the  embargo  was  sustained  in 
time  of  war.  Under  that  in  the  case  of  the  United  States  vs. 
Fisher,  in  2  Cranch,  the  duty  of  the  General  Government  to 
pay  its  debts,  was  held  to  sanction  legislation,  that  what  was 
owed  to  the  Government  should  have  priority  in  payment 
over  other  creditors  in  cases  of  insolvency.  Look  at  that  for 
a  moment.  The  duty  of  the  Government  is  to  pay  the  debts 
of  the  Union.  It  must,  then,  have  the  means  of  raising 


568         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

revenue  for  that  purpose;  it  must  have  the  power  to  buy,  as 
in  that  case  it  did,  a  bill  of  exchange  for  the  transmission  of 
funds,  and  when  the  debtor  on  the  bill  of  exchange  failed,  it 
had  a  right  to  say  that  the  Government  of  the  United  States 
should  be  paid  out  of  his  assests  before  any  other  creditor 
was  paid.  That  is  the  power  over  obligations  which  the 
Government  has  in  collection  of  its  debts,  from  the  fact  that, 
having  occasion  and  duty  to  pay  the  debts  of  the  Govern 
ment  it  needs  financial  expedients  and  methods,  as  bills  of 
exchange  and  other  forms  of  contingent  liability.  It,  there 
fore,  shall  have  the  power  to  assert  its  right  over  other  cred 
itors,  against  all  legislation  of  the  States  governing  these 
general  heads  of  private  rights. 

Looking  at  the  largeness  and  appropriateness  of  adapta 
tion  covered  by  that  decision — appropriateness  might  be 
narrowed  down  to  raising  revenue  to  pay  the  debts,  and 
appropriateness  of  adaptation  might  be  held  not  to  require 
anything  more  than  the  money  in  the  Treasury  and  having 
it  transmitted  by  messengers.  But  no;  all  the  ordinary 
expedients  by  which  this  duty  is  to  be  performed  of  paying 
debts,  and  so  of  deriving  the  means  to  pay  debts,  admits  of 
such  general  guaranteeing  legislation  of  safety  over  the 
Government's  funds,  as,  in  the  case  of  failure  of  a  debtor, 
shall  place  the  Government's  claim  on  a  different  footing 
from  that  of  the  States  themselves  and  of  their  citizens. 

Now,  who  shall  say  that  this  making  of  the  Government's 
promises  a  legal  tender  in  the  temporary  services  of  the 
finance  of  the  country,  is  not  an  appropriate  means  to  in 
vigorate  the  resources  of  the  country  in  time  of  war?  How 
do  we  judge  of  appropriateness  in  the  affairs  of  private  life, 
except  by  the  conduct  of  men  in  similar  situations?  How 
do  we  judge  of  the  appropriateness  of  a  public  contrivance 
in  aid  of  the  public  finances  under  the  immediate  pressure  of 
the  necessities  of  war  except  by  the  conduct  of  other  nations 
under  similar  stress?  I  do  not  argue  for  a  power  because 


LEGAL  TENDER  CASE  569 

other  nations  have  done  it.  I  only  argue  that  if  this  nation 
has  appropriate  and  adapted  means,  we  can  determine  by 
the  experience  and  conduct  of  other  nations  under  similar 
political  and  national  conditions,  what  appropriate  means 
are.  Every  nation  under  the  modern  system  of  society,  for 
reasons  which  I  shall  point  out  briefly,  but  I  think,  dis 
tinctly,  always  has  found  and  always  will  find  it,  in  the  cul 
mination  of  terror  and  of  danger  that  war  brings  to  all  the 
relations  of  any  society  involved  in  it,  necessary  to  be  master 
of  the  question  of  legal  tender  in  private  transactions,  as  a 
part  of  the  financial  system  of  the  nation,  or  else  legal  tender 
in  private  transactions  will  be  the  master  of  the  fate  and 
financial  resources  of  the  Government.  You  must  have 
authority  somewhere;  and  where  there  is  an  inexorable  law 
that  the  Government  cannot  break,  that  inexorable  law  in 
the  private  interest  that  controls  it,  is  the  master  of  the 
Government.  Its  wisdom,  as  I  have  said,  is  not  to  be  con 
sidered  judicially.  Wisdom  after  an  event  is  always  wiser 
than  wisdom  during  it;  for  it  has  more  experience.  But 
wisdom  of  action  in  the  presence  of  events  cannot  be  post 
poned  to  have  the  light  of  the  upshot  of  it,  without  the  ex 
pedient  being  resorted  to,  to  guide  you  whether  it  should  be 
resorted  to.  Wisdom  does  not  live  wholly,  any  more  than 
it  will  die  wholly,  with  the  judiciary.  Legal  authority  in 
construction  on  judicial  criteria,  as  to  the  conduct  of  the 
Government  belongs  to  the  judiciary;  but  to  judge  over  the 
action  of  government  on  political  criteria  of  wisdom  or  rash 
ness,  of  skill  or  clumsiness,  does  not  belong  to  the  courts. 
And  if  the  whole  experience  of  human  affairs  shows  that 
this  method  has  been  so  appropriate,  that  it  has  never  failed 
to  be  resorted  to  when  the  pressure  was  up  to  the  point 
where  it  came  in,  its  appropriateness  is  determined  and  its 
wisdom  is  determined  and  its  wisdom  is  with  the  legislature 
that  is  to  act. 

How  is  it  that  a  Government  situated  as  ours  was  on  the 


570         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

25th  of  February,  1862,  in  reference  to  its  duties  to  lay  and 
collect  taxes,  its  duties  to  sustain  the  public  credit,  its  duties 
to  carry  on  the  powers  of  war,  its  duties  to  preserve  peace  and 
strength  in  the  loyal  portions  of  the  country,  and  its  duty  to 
account  to  this  people  for  the  trust  confided  to  it  and  to  it 
alone,  impossible  of  execution  by  any  other  public  authority, 
impossible  of  execution  by  the  people  in  their  primary  ca 
pacity  without  revolution  and  destruction — how  is  it  that 
the  sober,  just,  rational,  judicial  exploration  of  these  powers 
and  duties  will  find  occasion  for  the  legislature  to  be  of  opin 
ion  that  this  was  an  appropriate  resort?  The  argument,  on 
our  side  is  entitled  in  determining  this  judicial  criterion  to  the 
political  postulate,  that  the  Government  of  the  United 
States  could  not  have  been  sustained  in  the  judgment  of  the 
authority  charged  with  its  maintenance  without  a  resort  to 
this  financial  expedient  which  had  been  at  the  service  of 
other  governments  and  was  familiar  in  our  own  past  history. 
Otherwise  you  get  into  a  discussion  of  the  opportuneness  or 
rashness  or  wisdom  or  circumspection  on  the  part  of  Con 
gress,  never  possible  to  become  judicial  questions.  You  must 
have  the  situation  in  which  without  this  resort,  the  national 
legislature  thought  the  Government  would  fall;  with  it,  that 
it  would  be  saved,  and  the  experience  we  have  is,  that  it  was 
resorted  to  and  that  the  country  was  saved.  What  would 
have  happened  by  greater  abstinence  from  this  power,  can 
only  be  matter  of  debate.  Safety  has  been  secured.  The 
means  aiding  in  that  must  now  be  deemed  appropriate,  unless 
plainly  to  be  shown  to  have  been  excessive,  extravagant  and 
perverse. 

At  this  time  we  had  no  internal  taxes.  On  the  25th  of 
February,  1862,  we  had  no  internal  revenue  provided  for  even 
for  future  collection,  the  first  act  having  been  passed  July  1, 
1862.  At  this  period  we  had  no  system  of  paper  currency  at 
the  service  of  and  controlled  by  Federal  legislation;  for  the 
national  bank  system  was  not  brought  into  existence  even 


LEGAL  TENDER  CASE  571 

prospectively  until  an  act  just  one  year  later,  February  25, 
1863,  and  the  war  was  pressed  by  the  rebellion  with  no 
observance  of  our  financial  system  or  our  imperfect  legisla 
tion.  They  did  not  wait  to  press  the  columns  of  their  power 
upon  us  until  they  saw  that  we  had  provided  legislation  to 
meet  it.  They  did  not  wait  to  attempt  the  exhaustion  of  our 
financial  resources  and  of  financial  patience  and  subordina 
tion  of  our  people,  until  we  had  provided  an  apparatus  of 
taxation  and  received  the  inflowing  treasures,  or  an  appara 
tus  of  paper  money  controlled  by  the  Federal  Government 
and  received  its  aid  in  support  of  the  volume  of  currency  to 
strengthen  the  Government  and  relieve  the  people.  They 
took  us  as  we  were,  without  internal  revenue  and  without 
paper  money  controlled  by  the  Federal  Government,  and  the 
question  then  was,  How  shall  this  Government  possess  itself 
by  taxation  from  the  people  either  in  the  form  of  immediate 
exaction  or  of  loan?  For  a  public  loan  is  nothing  but  a  dis 
count  of  taxation;  it  is  to  support  by  a  future  taxation  the 
confidence  of  capitalists  of  the  country  and  of  the  world 
which  secure  the  loan — how  shall  the  Government  furnish 
itself  by  taxation  with  means  to  carry  on  the  war?  Nay, 
how  shall  it  furnish  the  people,  willing,  loyal,  faithful,  able 
and  energetic  as  they,  with  the  medium,  with  the  faculty  of 
paying  the  taxes  of  the  Government  in  the  immense  volume 
that  they  need  to  be  precipitately  poured  into  the  treasury? 
How,  either  in  the  form  of  the  exacted  tax  or  in  the  form  of 
the  anticipated  tax  by  loan  on  public  credit,  shall  this  people 
have  the  medium  to  aid  their  Government?  The  States  can 
do  nothing  for  it.  If  the  inexorable  law  of  private  right  can 
demand  the  maintenance  of  the  legal  tender  between  man 
and  man  in  gold  and  silver,  while  the  Government  has  no 
power  to  pay  gold  or  silver  in  its  public  transactions,  and  no 
power  to  exact  gold  and  silver  from  the  public  debtor,  and 
there  be  collision  between  this  private  power  of  compulsory 
exaction  of  debts  interfering  with  the  operations  of  the 


572         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

Government  in  laying  taxes,  in  borrowing  money,  in  paying 
troops,  then  I  submit  there  is  presented  nothing  but  sheer 
conflict  between  the  power  of  the  Government  to  accommo 
date  this  measure  of  private  law  to  its  necessity,  and  the 
power  of  the  private  creditor  to  exact  the  measure  of  his 
authority  in  defeat  and  prostration  of  the  public  finance 
and  of  the  public  safety.  I  know  that  fallacy  in  reasoning 
too  well,  which  is  satisfied  with  looking  at  the  mischief  of  any 
course  of  procedure  and  which  does  not  look  at  the  force  and 
effect  of  the  evils  which  are  to  attend  the  opposite  course  of 
action  or  inaction. 

Now,  what  are  you  going  to  do  with  the  public  finances  of 
the  country  that  require  in  some  sort  or  shape,  effectively, 
the  means  of  expenditure  under  the  exigencies  imposed  by  a 
public  enemy,  and  not  measured  by  wisdom  or  duty — ex 
penditures,  as  I  have  said,  in  five  years,  equal  to  the  volume 
of  our  revenue  for  fifty  years  of  peace  at  the  highest  measure 
they  have  reached?  You  have  got  to  get  that  amount  by 
taxation.  Your  people  have  got  to  have  the  means  after  a 
fashion  at  least,  of  paying  it,  and  you  have  got  to  have 
it  consistently  with  the  maintenance  as  far  as  may  be,  of  the 
business  and  the  habits  of  the  commercial  people,  and  of  the 
natural  circulation  of  the  resources  of  the  country  in  trade 
and  in  industry,  which  furnish  after  all,  the  final  measure 
and  the  ultimate  basis  of  the  public  credit  and  of  the  public 
strength. 

It  is  asked  in  some  of  the  judicial  opinions  and  is  advanced 
in  the  way  of  argument,  why  resort  to  this  method  outside  of 
direct  agency  and  bearing  upon  private  interests  and  obliga 
tions  so  injuriously,  when  the  Government  had  power  to 
exact  the  last  dollar  of  the  money  of  the  country  by  taxa 
tion?  Well,  agreed.  The  Government  of  the  country  had 
a  right  to  lay  a  tax  of  one  hundred  per  cent,  payable  in  ten 
days,  upon  all  the  property  within  its  limits.  An  excellent 
faculty!  And  when  it  had  been  done,  where  would  have 


LEGAL  TENDER  CASE  573 

been  the  property  of  the  country?  In  the  hands  of  the  citi 
zens  still  or  in  the  public  treasury?  It  has  the  power  of  con 
scription,  of  taking  all  the  physical  strength  suitable  for  the 
military  service  of  the  country  into  warlike  array  without 
paying  a  dollar.  I  do  not  think  we  would  venture  to  carry 
it  to  the  extent  of  not  feeding  the  soldiers,  but  we  might  re 
quire  them  to  feed  themselves.  And  what  .does  all  that 
amount  to?  It  is  a  faculty  and  a  power,  absurd  and  impos 
sible.  So,  too,  they  say  you  may  use  your  money  to  pay 
your  debts.  You  may  pay  your  troops  in  the  field,  a  million 
of  men,  with  that  money,  and  paying  them  they  may  send 
it  to  their  wives  and  families  at  home  to  pay  the  butcher  and 
the  baker;  and  the  butcher  and  baker  may  cast  their  wives 
and  families  into  jail  because  they  .offer  them  only  the  money 
that  the  Government  has  paid  the  soldiers,  and  not  the  gold 
and  silver  that  has  fled  from  the  country  in  the  presence  and 
dangers  of  war,  either  for  safety  abroad,  or  hoarded  in  the 
secret  coffer  of  the  timid  and  the  sordid.  That  is  what  may 
be  done.  And  how  long  would  it  be  before  the  soldiers,  told 
the  money  is  good  enough  for  them,  and  yet  cannot  buy 
bread  and  meat  with  it  for  their  families,  would  say,  if  good 
enough  for  us  and  not  for  the  butcher  and  baker  at  Lome, 
we  will  go  home  and  send  the  butcher  and  baker  here  to  take 
it  and  we  will  have  better  money?  They  say  it,  not  in  mu 
tiny,  not  in  violence,  but  in  the  natural  protest  that  no 
government  can  disregard. 

If  you  admit  that  the  basis  of  affairs  in  this  country  can 
not  be  carried  on  in  the  transactions  of  public  taxation  and 
of  public  payments  upon  the  measure  of  gold  and  silver,  by 
reason  of  your  needing  to  anticipate  the  resources  of  your 
Government  and  making  debt  at  once  and  its  securities, 
money  of  the  country — if  you  admit  that,  then  you  must 
admit  that  the  private  relations  of  life,  which  furnish  after 
all,  the  basis  and  the  gauge  upon  which  the  public  duties  can 
be  performed  by  the  taxpayers,  and  the  public  obligations  of 


574         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

the  Government  ought  to  be  measured,  and  must  be,  upon 
the  same  standard. 

I  have  been  at  a  loss  to  find  in  the  judicial  arguments  of 
the  courts  below,  or  in  those  made  in  the  briefs  here,  or  in 
the  oral  arguments,  however  interesting,  valuable  and 
thorough,  they  have  been,  presented  to  your  Honors,  any 
substitute  for  this  financial  expedient,  which  instead  of 
exacting  taxes  in  solido  for  the  whole  amount  at  once,  in 
stead  of  exacting  them  in  specie,  exacted  them  but  furnishing 
at  the  same  time  a  promise  of  the  Government,  that  whoever 
would  supply  them  should  be  repaid,  and  thus  turned  into  a 
loan  or  anticipation  of  taxes  instead  of  absolute  present 
exaction.  Was  specie  payment  continued  by  moneyed 
corporations  in  the  United  States?  No.  Could  it  be?  No. 
A  nation  brought  up  with  metallic  and  paper  currency  mixed, 
and  placed  under  circumstances  when  the  volume  of  its  finan 
cial  transactions  becomes  fabulous  compared  with  all  past 
operations  of  the  Government,  which  was  furnished  with  no 
system  of  paper  money  and  having  no  immediate  possible 
mode  of  establishing  it  except  on  the  public  credit,  under 
takes  to  distribute  the  pressure  over  the  future  industry  of 
the  country,  by  making  it  a  loan  instead  of  an  exaction  of 
present  taxes,  and  to  distribute  it  in  the  burden  and  adjust 
ment  of  society  to  it,  by  making  it  the  measure  of  dealing 
between  the  just  and  the  unjust,  the  loyal  and  the  disloyal, 
the  brave  and  honest  friends  of  government  and  the  timid 
and  cowardly  deserters  of  duty,  by  saying  "y°u  shall  bear 
this  now  as  a  loan,  and  it  shall  serve  but  as  an  arrangement  of 
a  great  clearing  house  for  all  the  finances  of  this  country, 
private  and  public,  until  this  war  is  over."  We  promise  to 
pay  the  dollars  that  have  intrinsic  value,  and  the  public 
faith  is  pledged  for  them,  and  when  the  public  resources  are 
adequate  they  shall  be  paid  at  the  will  of  the  holder.  They 
may  be  digested  and  changed  into  the  postponed  loan  having 
interest  payable  in  coin,  and  future  payment  in  solido  at  a 


LEGAL  TENDER  CASE  575 

period  when  the  Government  shall  be  in  possession  by  taxa 
tion,  of  means.  In  the  meanwhile  all  this  loan  thus  fur 
nished  you  and  taken  from  you,  for  that  is  its  double  char 
acter,  the  public  credit  is  advanced  to  the  taxpayers  that 
they  may  use  it  in  paying  taxes;  the  public  loan  is  exacted 
from  the  people  by  requiring  them  to  take  this  money  or 
nothing — in  the  meanwhile  this  shall  be  a  loan  to  you  as  a 
whole;  there  shall  be  no  power  for  one  to  have  an  advantage 
over  the  other,  but  what  we  under  this  necessity  impose 
upon  our  creditors,  what  we  thus  in  necessity  limit  our  de 
mand  for  from  our  debtors,  shall  be  the  measure  of  debt  and 
credit  as  between  you,  and  the  final  settlement  shall  be  made 
by  the  holders  with  the  Treasury  of  the  United  States. 

Now,  the  mischiefs  and  injuries  have  been  held  up  as  if 
they  were  the  objects  of  the  legislation  of  this  country. 
These  are  its  objects:  A  government  having  power  to  exact 
in  solido  by  present  tax,  all  the  property  of  the  people,  having 
power  to  exact  in  solido  the  military  strength  of  the  country 
without  pay,  subject  only  to  the  physical  strength  to  enforce 
these  exactions,  chooses  thus  to  administer,  thus  to  measure, 
thus  to  moderate  its  processes.  And  this  is  said  to  be  a 
trifling  with  private  rights  because,  in  the  jostling  of  this 
settlement,  it  happens  that  a  man  gets  less  for  his  oats,  or 
less  for  his  farm,  or  less  for  his  gold,  than  he  would  otherwise 
get.  This  disturbance  of  contracts  in  this  administrative, 
conservative,  preservative  form,  the  best  possible  under  the 
circumstances,  is  decried  and  condemned  because  the  Gov 
ernment  instead  did  not  take  the  tax  payers  by  the  throat 
and  exact  the  uttermost  farthing.  The  Government  is  the 
creditor  of  the  people  for  all  that  they  have  and  are,  in  its 
hour  of  danger.  The  man  who  goes  to  fight  for  his  country 
pays  a  debt;  the  man  who  yields  his  treasure  to  the  country 
pays  a  debt;  and  when  the  nation  forgives  this  enormous 
debt  by  reason  of  the  infirmity  or  inability  to  pay  it  on  the 
part  of  the  debtors,  unless  it  have  patience  with  them  until 


576         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

they  can  pay  it  all,  and  thus  deals  with  them  in  mercy,  is  to 
be  restrained  from  withholding  this  debtor,  thus  forgiven, 
from  going  to  his  fellow-servant  and  taking  him  by  the  throat 
and  casting  him  into  prison  until,  in  gold  and  silver,  he  shall 
pay  the  uttermost  farthing. 

I  submit  that  that  is  the  situation  of  the  country;  that  is 
the  obligation  of  the  citizens;  and  yet  because,  as  an  inci 
dental  pressure  in  the  wave  of  this  great  financial  tide  neces 
sary  to  float  the  ship  of  state  over  the  breakers,  some  cock 
boat  is  crushed,  it  is  said  the  power  of  the  Government  was 
inadequate  to  it,  and  the  sacredness  of  contracts  and  obliga 
tions  is  thus  incidentally  interfered  with.  Why,  the  Gov 
ernment,  in  this  hour  of  its  stress,  may  separate  the  bride 
groom  from  the  bride  at  the  foot  of  the  altar,  thus  impairing 
the  obligation  of  the  sincerest  contract  of  human  society.  I 
may  beckon  the  son  from  the  dying  bed  of  his  mother,  thus 
impairing  the  highest  obligation  of  nature,  and  trespassing 
upon  the  commandment  of  God  we  promise  to  obey.  But 
it  cannot  say  to  the  butcher  and  the  baker  at  home,  that  the 
money  which  it  pays  to  its  soldiers  in  the  field  shall  feed  their 
families  until  the  war  is  over. 

The  truth  is  that  the  argument  and  the  invective  alike 
deal  with  an  incidental  evil  as  if  it  was  the  appropriate  and 
expected  end.  It  mistakes  the  suffering  of  the  patient  under 
the  surgeon's  knife  for  the  quivering  anguish  of  the  victim 
under  the  blade  of  the  assassin.  It  mistakes  the  knife  and 
cautery,  that  are  to  save,  for  the  fire  and  sword  that  are  to 
destroy,  and  asks  unblushingly  if  a  government  founded  on 
justice  can  compel  a  dealer  to  take  less  than  his  contract  and 
to  have  it  in  anything  but  gold,  even  if  the  preservation  of 
these  peaceful  and  just  relations  when  possible  must  yield 
when  they  become  impossible. 

What  followed  from  this  measure  of  the  Government? 
Taxes  were  possible  to  be  paid;  services  and  supplies  were 
possible  to  be  obtained;  and  the  faith  of  this  people  in  their 


LEGAL  TENDER  CASE  577 

Government  did  give  an  intrinsic  value  to  the  promise  to 
pay  in  gold  and  silve  •  when  the  Government  should  be  able 
to  pay.  The  people  lying  ready  to  meet,  anxious  to  be  mar 
shaled  to  meet  the  terrible  array  found  in  this  administra 
tion  of  finance,  as  in  the  military  distribution  of  strength, 
their  means  of  safety;  and  when  they  sat  imploring  at  the 
gate  of  our  temple  of  liberty  and  the  Government  said, 
"Silver  and  gold  have  I  none,  but  such  as  I  have,  give  I 
thee,"  they  rose  and  walked  and  saved  the  country  under 
this  benign  adjustment  of  means  to  ends. 

The  judicial  opinions  given  in  the  cases  with  great  force, 
with  great  judgment,  with  great  plenitude,  illustrate  all 
these  financial  operations.  It  is  enough  for  me  to  say  the 
relation  is  obvious,  the  result  is  natural  and  useful,  and  unless 
you  will  point  me  to  a  constitution  that  says  in  so  many 
words,  "This  government  shall  be  preserved  only  up  to  the 
legal  tender  point  and  then  it  shall  fall,  for  it  is  better  that 
gold  and  silver  should  be  our  masters  than  that  our  con 
stituted  liberties  should  be  maintained  at  the  disturbance  of 
the  legal  tender,"  I  shall  be  justified  in  approving,  the  finan 
cial  agent  of  the  Government  will  be  justified  in  administer 
ing,  this  subjection  of  the  compulsory  payment  of  debts  in 
private  contracts  to  the  compulsory  execution  in  war  of  the 
obligations  of  Government. 

But,  if  the  Court  please,  if  it  should  be  held  that  this  act 
was  without  authority  from  the  Constitution  of  the  United 
States,  as  it  stood  at  the  time  of  the  passage  of  the  law,  in 
this,  that  that  feature  of  the  statute  providing  for  the  issue 
and  funding  of  the  public  debt  was  without  authority,  I 
submit  that  that  defect  of  law  can  no  longer  be  urged  under 
the  14th  amendment  of  the  Constitution,  for  that  has  rati 
fied  every  act  of  Congress,  according  to  its  fair  intent  and 
meaning,  that  has  executed  an  issue  of  the  public  debt.  The 
language  of  that  clause  of  the  14th  amendment  to  which  I 
advert,  states,  page  20  of  my  brief,  "The  validity  of  the 


578         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

public  debt  of  the  United  States,  authorized  by  law,  including 
debts  incurred  for  payment  of  pensions  and  bounties  for 
services  in  suppressing  insurrection  or  rebellion,  shall  not  be 
questioned." 

Now,  what  does  that  mean?  We  do  not  pass  constitu 
tional  amendments  to  say  that  laws  of  Congress  that  have 
been  passed  conformably  to  the  old  Constitution  shall  not  be 
questioned,  because  we  should  have  to  pass  another  amend 
ment  to  say  that  this  amendment  shall  not  be  questioned, 
and  so  forth  and  so  forth.  We  pass  it,  according  to  the 
force  of  the  terms  used,  for  a  questionable  measure  of  law 
regarding  the  public  debt,  and  say  it  shall  not  be  questioned 
hereafter. 

The  supreme,  the  deliberate  authority  of  the  people,  execut 
ing  their  reserved  powers,  if  they  had  them,  over  legal  tender 
or  whatever  else,  looking  backward  and  applying  indemnity 
to  the  public  agents  and  approval  to  the  public  means,  says 
that  the  laws  which  during  the  stress  of  war,  have  been 
passed  in  aid  and  support  of  the  public  credit,  shall  not  be 
questioned;  they  shall  not  be  questioned  in  court  or  places 
or  arguments  or  theories.  Whatever  you  find  on  the  law 
book  of  this  nation,  by  its  faithful  servants  deemed  at  the 
time  needed  and  useful  in  aid  of  the  public  credit,  shall  in 
here  as  an  unquestionable  feature  in  the  form  and  effect  of  its 
securities,  according  to  the  tenor  of  the  law.  No  narrow 
scope,  no  less  efficient  authority,  will  answer  as  the  notice 
for  which  this  intervention  of  the  supreme  will  of  the  Amer 
ican  people  was  asked  and  was  rendered.  I  am  sure  I  do  not 
know,  as  matter  of  fact,  in  judicial  or  practical  affairs,  that 
there  is  one  single  point  in  which  the  debt  of  the  United 
States,  in  the  form  and  effect  in  which  the  legislation  has 
issued  and  maintained  it,  has  been  or  is  questioned,  except 
in  this  mere  fact  of  the  legal  tender  feature.  Can  you  limit 
the  word  questioned  to  its  political  sense  by  the  action  of 
Congress  repealing,  subverting,  neglecting  or  thwarting  the 


LEGAL  TENDER  CASE  579 

public  debt?  Why,  if  there  be  any  element  at  all  in  what  is 
universal,  it  must  include  the  judicial  question  of  validity 
in  what  Congress  has  heretofore  done.  We  survey  now  the 
past  situation;  we  look  at  the  debt  as  it  is,  or  look  at  the 
laws  as  they  are  and  their  feature,  and  the  vigor  that  has 
been  given  to  the  public  securities,  and  we  say  now  in  our 
plenary  sovereignty  that  that  debt,  as  read  in  the  letter  of 
the  law,  shall  never  be  questioned. 

I  have  but  to  ask  the  attention  of  the  Court,  not  so  much 
to  the  discussion,  as  to  my  abstinence  from  discussion,  of  the 
secondary  questions  involved  here.  They  have  been  very 
ably  and  very  ingeniously  presented  both  by  Mr.  Townsend 
and  Mr.  Potter,  in  exhibition  of  the  inconveniences,  the  in 
congruities  and  the  disappointments  which  will  grow  out  of 
this  or  that  form  of  construction  of  the  degree  of  efficacy 
that  shall  be  given  to  this  money  in  the  discharge  of  past 
contracts  or  obligations  arising  substantially  ex  delicto.  A 
great  part  of  the  criticism,  ingenious  and  interesting,  will  be 
found  after  all  to  be  but  a  form  of  that  criticism  we  all  must 
submit  to,  the  imperfection  of  human  justice;  for  in  the  very 
case  that  his  honor,  Judge  Nelson,  put  of  the  oats  bought  in 
Canada  and  lost  on  the  North  River,  the  rule,  undisturbed 
now  by  this  question  of  medium  value,  as  he  rightly  holds, 
is,  that  in  the  phrase  of  law,  the  invoice  price  is  to  furnish 
the  value.  Very  well.  I  bought  my  oats  at  fifty  cents  in 
gold  in  Canada,  and  a  week  after  without  any  disturbance 
in  the  currency  they  are  worth  one  dollar  by  the  rise  of  oats, 
and  my  oats  which  are  worth  a  dollar  to  me  are  paid,  by  the 
tort  feasor  in  the  collision,  at  fifty  cents.  General  rules  are 
necessary.  The  oats  may  have  fallen  to  twenty-five  cents; 
the  tort  feasor  instead  of  doing  the  particular  justice  of  re 
storing  my  oats  which  he  might  do  at  twenty -five  cents, 
which  is  the  exact  restoration  of  my  situation,  provided  it  be 
immediate,  is  obliged  to  pay  fifty  cents  for  oats  sunk  worth 
only  twenty-five  cents. 


580         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

This  is  the  imperfection  of  natural  and  human  tribunals. 
A  man  trusts  his  jaw  to  a  dentist  and  it  is  broken.  The 
courts  instead  of  giving  him  a  new  jaw,  gives  him  so  much 
money  in  his  pocket.  So  in  a  variety  of  ways.  It  is  but 
the  imperfection  of  human  justice.  A  great  many  of  the 
cases,  I  am  persuaded,  will  not  stand  the  test  of  law.  If  I 
deliver  a  bag  of  gold  to  my  clerk  or  porter  to  pay  duties, 
and  he  sells  it  by  the  way,  and  brings,  as  Mr.  Potter  supposes, 
for  the  money,  legal  tender  notes  and  pays  his  debt  to  me, 
that  will  not  save  him  from  the  State  prison  for  having  em 
bezzled  my  gold  as  he  did  on  the  way.  There  are  a  great 
many  cases  where  an  injudicious  selection  of  agents  for 
definite  trusts  results,  in  spite  of  all  the  law  can  do,  to  dis 
appointment  of  confidence  reposed.  But  all  these  modifica 
tions  being  applied  and  the  matter  reduced  to  what  belongs 
to  it,  this  same  general  necessity  of  law  which  I  have 
adverted  to,  when  this  disturbing  element  of  the  measure  of 
damages  being  changed  does  not  come  in,  requires  us  to 
apply  only  the  same  possible  completeness  of  justice  to  this 
disturbing  element  if  it  be  a  legal  one. 

You  must  give  a  judgment  on  a  contract.  If  it  be  a  con 
tract  sounding  in  debt,  there  is  no  question  of  evidence  and 
none  for  a  jury.  The  law  then  must  pass  upon  it.  It  is  in 
dollars  of  our  currency.  That  contract  of  law  will  sustain 
a  judgment  only  for  the  number  of  dollars  claimed  in  it. 
When  the  law  says  that  the  metallic  currency  shall  be  met  in 
dollars  of  legal  tender  then  the  judgment  of  the  court  must 
be  so,  and  it  would  not  escape  injustice  if  it  did  the  other  and 
gave  de  presenti  in  its  judgment  of  to-day  a  measure  of  value 
in  paper  money  adequate  to  the  gold  unless  it  be  specific  per 
formance  of  judgment,  which  it  cannot  do,  for  the  specific 
performance  of  the  judgment  would  be  that  it  should  be  paid 
in  gold,  unless  paper  money  equal  in  value  should  be  ten 
dered.  If  when  gold  is  280,  an  obligation  to  pay  a  hundred 
dollars  in  gold  is  to  result  in  a  judgment  for  $280,  why  the 


LEGAL  TENDER  CASE  581 

judgment  creditors  can  exact  $280  in  greenbacks  when  $100 
of  them  are  equal  to  his  debt. 

You  must,  therefore,  have  a  general  rule  of  law,  and  press 
ing  that  upon  the  Court,  and  insisting  upon  this  and  this 
alone  as  necessary  in  the  public  administration  of  the  ques 
tion,  I  say  that  whenever  in  contract  a  debt  is  liquidated  in 
money  of  our  currency  called  dollars  judgment  payable  in 
legal  tender  according  to  law  can  be  only  for  that  amount. 
But  when  you  liquidate  it  in  judgment,  not  being  liquidated 
in  contract  or  arising  from  tort,  and  evidence  is  admissible 
either  to  prove  what  foreign  money  is  worth  or  to  prove  what 
the  value  converted  or  the  measure  of  trespass  should  be 
accounted  in,  then  the  court  by  the  established  rules  of  law 
liquidate  it  on  the  judgment  of  a  jury  finding  on  the  fact. 
And  that  judgment  is  then  for  the  first  time  the  liquidation 
in  dollars  of  the  United  States  of  the  obligation,  to  show  that 
it  becomes  a  debt.  All  other  difficulties,  if  your  Honors 
please,  of  adjustment  or  interpretation  as  to  what  belongs  to 
notes  payable  in  commodities  and  how  they  are  to  be  liqui 
dated  in  commodities,  as  they  are  payable  in  commodities 
when  they  describe  gold  and  silver  dollars,  are  matters  of 
private  right  submitted  to  the  jurisdiction  of  this  Court, 
with  which  the  public,  as  now  represented  in  this  presenta 
tion  of  the  matter,  to  which  your  Honors  have  done  me  the 
favor  to  listen,  and  which  is  submitted  on  their  behalf,  has 
nothing  to  do. 


VII 

ARGUMENT   BEFORE   THE    INTERNATIONAL 
TRIBUNAL  OF  ARBITRATION  AT  GENEVA 

NOTE 

By  the  Treaty  of  Washington  of  May  8,  1871,  all  claims  against 
Great  Britain  in  behalf  of  the  citizens  of  the  United  States  who, 
during  the  Civil  War,  had  suffered  loss  through  the  depredations 
upon  the  high  seas  of  the  Confederate  cruisers,  built,  equipped 
and  manned  in  the  ship-yards  of  England,  were  referred  to  arbitra 
tion.  The  principal  offender  among  these  cruisers  was  the  "Ala 
bama"  and  all  these  claims  thus  arising  were  called  generically  the 
Alabama  Claims.  An  important  article  of  the  treaty  relating  to 
this  subject  provided  that  the  arbitrators  in  deciding  the  matter 
submitted  to  them  should  be  guided  by  the  following  rules : 

"A  neutral  government  is  bound,  first,  to  use  due  diligence  to 
prevent  the  fitting  out,  arming,  or  equipping,  within  its  jurisdiction, 
of  any  vessel  which  it  has  reasonable  ground  to  believe  is  intended 
to  cruise  or  to  carry  on  war  against  a  power  with  which  it  is  at 
peace;  and  also  to  use  like  diligence  to  prevent  the  departure  from 
its  jurisdiction  of  any  vessel  intended  to  cruise  or  carry  on  war  as 
above,  such  vessel  having  been  specially  adapted  in  whole  or  in 
part,  within  such  jurisdiction  to  war-like  use.  Secondly,  not  to 
permit  or  suffer  either  belligerent  to  make  use  of  its  ports  or  waters 
as  the  base  of  naval  operations  against  the  other,  or  for  the  purpose 
of  the  renewal  or  augmentation  of  military  supplies  or  arms,  or 
the  recruitment  of  men.  Thirdly,  to  exercise  due  diligence  in  its 
own  ports  and  waters,  and,  as  to  all  persons  within  its  jurisdiction, 
to  prevent  any  violation  of  the  foregoing  obligations  and  duties." 

The  arbitrators  named  pursuant  to  the  treaty  were  as  follows: 
Mr.  Charles  Francis  Adams,  United  States  Minister  at  London 
during  the  Civil  War,  appointed  by  President  Grant;  Sir  Alexander 
Cockburn,  Chief  Justice  of  the  Queen's  Bench,  appointed  by  Queen 
Victoria;  Count  Frederick  Sclopis,  an  eminent  Italian  jurist  and 
statesman,  appointed  by  the  King  of  Italy;  Mr.  Jacob  Staempfli,  a 

582 


THE  ALABAMA  CLAIMS  583 

former  President  of  the  Swiss  Confederation,  appointed  by  the 
President  of  that  Government;  and  Baron  d'  Itajuba,  Brazilian 
minister  at  Paris,  appointed  by  the  Emperor  of  Brazil. 

The  sessions  of  the  tribunal  were  held  in  the  "Salle  des  Con 
ferences"  of  the  ancient  Hotel  de  Ville  at  Geneva,  Switzerland. 
This  room  has  since  been  called  "Salle  de  I'Alabama,"  and  a 
tablet  commemorating  the  momentous  transactions  of  the  arbitra 
tion  has  been  placed  upon  its  walls. 

Great  Britain  was  represented  before  the  tribunal  by  Lord  Ten- 
terden,  the  Agent  of  his  Government,  and  by  Sir  Roundel  Palmer, 
afterwards  Lord  Chancellor  Selborne,  as  counsel,  with  whom  was 
associated  Mr.  Montague  Bernard.  The  Agent  for  the  United 
States  was  Mr.  J.  C.  Bancroft  Davis,  and  the  counsel,  three  in 
number,  were  Caleb  Gushing,  for  many  years  among  the  foremost 
at  the  bar,  Morrison  R.  Waite,  afterwards  Chief  Justice  of  the 
United  States  Supreme  Court,  and  Mr.  Evarts. 

The  first  meeting  of  the  Tribunal  was  held  December  15,  1871, 
when  the  printed  cases  of  the  two  governments  with  the  accompa 
nying  evidence  were  presented,  the  arbitrators  designating  the 
15th  of  the  following  April  as  the  time  for  presenting  their  re 
spective  counter  cases.  The  final  session  of  the  Tribunal  was  on 
the  14th  of  September,  1872. 

At  the  session  of  the  Tribunal  held  July  25, 1872,  in  the  language 
of  Protocol  XIV  of  the  conference: 

"On  the  proposal  of  Baron  d'ltajuba,  as  one  of  the  arbitrators, 
the  Tribunal  decided  to  require  a  written  or  printed  statement  or 
argument  from  the  Counsel  of  Great  Britain  upon  the  following 
questions  of  law: 

"1.  The  question  of  due  diligence,  generally  considered; 

"2.  The  special  question  as  to  the  effect  of  the  commissions  of 
Confederate  ships  of  war  entering  British  ports; 

"3.  The  special  question,  as  to  the  supplies  of  coal  in  British 
ports  to  Confederate  ships;  with  the  right  to  the  other  party  to 
reply  either  orally  or  in  writing,  as  the  case  may  be." 

On  July  29  the  printed  argument  of  Sir  Roundel  Palmer,  Counsel 
for  the  British  Government,  was  filed  with  the  arbitrators  pursuant 
to  the  direction  of  the  Tribunal,  and  on  the  5th  and  6th  of  August 
Mr.  Evarts  delivered  the  following  oral  argument  in  reply: 


584         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

ARGUMENT 
FIRST  DAY,  AUGUST  5,  1872 

In  the  course  of  the  deliberations  of  the  Tribunal,  it  has 
seemed  good  to  the  arbitrators,  in  pursuance  of  the  provi 
sion  of  the  fifth  article  of  the  Treaty  of  Washington,  to  in 
timate  that  on  certain  specific  points  they  would  desire  a 
further  discussion  on  the  part  of  the  Counsel  of  Her  Bri 
tannic  Majesty  for  the  elucidation  of  those  points  in  the 
consideration  of  the  Tribunal.  Under  that  invitation,  the 
eminent  Counsel  for  the  British  Government  has  presented 
an  argument  which  distributes  itself,  as  it  seems  to  us,  while 
dealing  with  the  three  points  suggested,  over  a  very  general 
examination  of  the  argument  which  has  already  been  pre 
sented  on  the  part  of  the  United  States. 

In  availing  ourselves  of  the  right,  under  the  treaty,  of 
replying  to  this  special  argument  upon  the  points  named  by 
the  Tribunal,  it  has  been  a  matter  of  some  embarrassment 
to  determine  exactly  how  far  this  discussion  on  our  part 
might  properly  go.  In  one  sense,  our  deliberate  judgment 
is,  that  this  new  discussion  has  really  added  but  little  to  the 
views  or  the  argument  which  had  already  been  presented  on 
behalf  of  the  British  Government,  and  that  it  has  not  dis 
turbed  the  positions  which  had  been  insisted  upon,  on  the 
part  of  the  United  States,  in  answer  to  the  previous  discus 
sions  on  the  part  of  the  British  Government,  contained  in  its 
case,  counter-case,  and  argument. 

But  to  have  treated  the  matter  in  this  way,  and  left  our 
previous  argument  to  be  itself  such  an  answer  as  we  were 
satisfied  to  rely  upon  to  the  new  developments  of  contrary 
views  that  were  presented  in  this  special  argument  of  the 
British  Government,  would  have  seemed  to  assume  too  con 
fidently  in  favor  of  our  argument,  that  it  was  an  adequate 
response  in  itself,  and  would  have  been  not  altogether  re 
spectful  to  the  very  able,  very  comprehensive,  and  very 


THE  ALABAMA  CLAIMS  585 

thorough  criticism  upon  the  main  points  of  that  argument, 
which  the  eminent  Counsel  of  Her  Majesty  has  now  pre 
sented.  Nevertheless,  it  seems  quite  foreign  from  our  duty, 
and  quite  unnecessary  for  any  great  service  to  the  Tribunal, 
to  pursue  in  detail  every  point  and  suggestion,  however  perti 
nent  and  however  skilfully  applied,  that  is  raised  in  this  new 
argument  of  the  eminent  Counsel.  We  shall  endeavor, 
therefore,  to  present  such  views  as  seem  to  us  useful  and 
valuable,  and  as  tend  in  their  general  bearing  to  dispose  of 
the  difficulties  and  counter  propositions  opposed  to  our 
views  in  the  learned  Counsel's  present  criticism  upon  them. 

The  American  argument,  presented  on  the  15th  of  June, 
as  bearing  upon  these  three  points  now  under  discussion, 
had  distributed  the  subject  under  the  general  heads  of  the 
measure  of  international  duties;  of  the  means  which  Great 
Britain  possessed  for  the  performance  of  those  duties;  of  the 
true  scope  and  meaning  of  the  phrase  "due  diligence,"  as 
used  in  the  treaty ;  of  the  particular  application  of  the  duties 
of  the  treaty  to  the  case  of  cruisers  on  their  subsequent  visits 
to  British  ports;  and,  then,  of  the  faults,  or  failures,  or  short 
comings  of  Great  Britain  in  its  actual  conduct  of  the  trans 
actions  under  review,  in  reference  to  these  measures  of  duty, 
and  this  exaction  of  due  diligence. 

The  special  topic  now  raised  for  discussion,  in  the  matter 
of  "due  diligence"  generally  considered,  has  been  regarded 
by  the  Counsel  of  the  British  Government  as  involving  a 
consideration,  not  only  of  the  measure  of  diligence  required 
for  the  discharge  of  ascertained  duties,  but  also  the  discus 
sion  of  what  the  measure  of  those  duties  was;  and,  then,  of 
the  exaction  of  due  diligence  as  applicable  to  the  different 
instances  or  occasions  for  the  discharge  of  that  duty,  which 
the  actual  transactions  in  controversy  between  the  parties 
disclosed.  That  treatment  of  the  points  is,  of  course,  suit 
able  enough  if,  in  the  judgment  of  the  learned  Counsel, 
necessary  for  properly  meeting  the  question  specifically  under 


586         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

consideration,  because  all  those  elements  do  bear  upon  the 
question  of  "due  diligence"  as  relative  to  the  time,  and 
place,  and  circumstances  that  called  for  its  exercise.  Never 
theless,  the  general  question,  thus  largely  construed,  is  really 
equivalent  to  the  main  controversy  submitted  to  the  disposi 
tion  of  this  Tribunal  by  the  treaty,  to  wit,  whether  the  re 
quired  due  diligence  has  been  applied  in  the  actual  conduct 
of  affairs  by  Great  Britain  to  the  different  situations  for  and 
in  which  it  was  exacted. 

The  reach  and  effort  of  this  special  argument  in  behalf  of 
the  British  Government,  seem  to  us  to  aim  at  the  reduction 
of  the  duties  incumbent  on  Great  Britain,  the  reduction  of 
the  obligation  to  perform  those  duties,  in  its  source  and  in 
its  authority,  and  to  the  calling  back  of  the  cause  to  the  posi 
tion  assumed  and  insisted  upon  in  the  previous  argument  in 
behalf  of  the  British  Government,  that  this  was  a  inatter, 
not  of  international  duty,  and  not  of  international  obliga 
tion,  and  not  to  be  judged  of  in  the  court  of  nations  as  a 
duty  due  by  one  nation,  Great  Britain,  to  another  nation, 
the  United  States,  but  only  as  a  question  of  its  duty  to  itself, 
in  the  maintenance  of  its  neutrality,  and  to  its  own  laws  and 
its  own  people,  in  exerting  the  means  placed  at  the  service 
of  the  Government  by  the  Foreign  Enlistment  Act  for  con 
trolling  any  efforts  against  the  peace  and  dignity  of  the 
nation. 

We  had  supposed,  and  have  so  in  our  argument  insisted, 
that  all  that  long  debate  was  concluded  by  what  had  been 
settled  by  definitive  convention  between  the  two  nations  as 
the  law  of  this  Tribunal,  upon  which  the  conduct  and  duty 
of  Great  Britain,  and  the  claims  and  rights  of  the  United 
States,  were  to  be  adjudged,  and  had  been  distinctly  ex 
pressed,  and  authoritatively  and  finally  established,  in  the 
three  rules  of  the  treaty. 

Before  undertaking  to  meet  the  more  particular  inquiries 
that  are  to  be  disposed  of  in  this  argument,  it  is  proper  that, 


THE  ALABAMA  CLAIMS  587 

at  the  outset,  we  should  take  notice  of  an  attempt  to  dis 
parage  the  efficacy  of  those  rules,  the  source  of  their  author 
ity,  and  the  nature  of  their  obligation  upon  Great  Britain. 
The  first  five  sections  of  the  special  argument  are  devoted 
to  this  consideration.  It  is  said  that  the  only  way  that  these 
rules  come  to  be  important  in  passing  judgment  upon  the 
conduct  of  Great  Britain,  in  the  matter  of  the  claims  of  the 
United  States,  is  by  the  consent  of  Her  Majesty  that,  in 
deciding  the  questions  between  the  two  countries  arising  out 
of  these  claims,  the  arbitrators  should  assume  that,  during 
the  course  of  these  transactions,  Her  Majesty's  Government 
had  undertaken  to  act  upon  the  principles  set  forth  in  these 
rules  and  in  them  announced.  That  requires,  it  is  said,  as 
a  principal  consideration,  that  the  Tribunal  should  deter 
mine  what  the  law  of  nations  on  these  subjects  would  have 
been  if  these  rules  had  not  been  thus  adopted.  Then  it  is 
argued  that,  as  to  the  propositions  of  duty  covered  by  the 
first  rule,  the  law  of  nations  did  not  impose  them,  and  that 
the  obligation  of  Great  Britain,  therefore,  in  respect  to  the 
performance  of  the  duties  assigned  in  that  rule,  was  not 
derived  from  the  law  of  nations,  was  not,  therefore,  a  duty 
between  it  and  the  United  States,  nor  a  duty  the  breach  of 
which  called  for  the  resentments  or  the  indemnities  that 
belong  to  a  violation  of  the  law  of  nations.  Then,  it  is 
argued  that  the  whole  duty  and  responsibility  and  obliga 
tion  in  that  regard,  on  the  part  of  Great  Britain,  arose  under 
the  provisions  of  its  domestic  legislation,  under  the  provi 
sions  of  the  Foreign  Enlistment  Act,  under  a  general  obliga 
tion  by  which  a  nation,  having  assigned  a  rule  of  conduct 
for  itself,  is  amenable  for  its  proper  and  equal  performance 
as  between  and  towards  the  two  belligerents.  Then,  it  is 
argued  that  this  assent  of  the  British  Government,  that  the 
Tribunal  shall  regard  that  Government  as  held  to  the  per 
formance  of  the  duties  assigned  in  those  rules,  in  so  far  as 
those  rules  were  not  of  antecedent  obligation  in  the  law  of 


588         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

nations,  is  not  a  consent  that  Great  Britain  shall  be  held 
under  an  international  obligation  to  perform  the  rules  in 
that  regard,  but  simply  as  an  agreement  that  they  had  under 
taken  to  discharge,  as  a  municipal  obligation,  under  the  pro 
visions  of  their  Foreign  Enlistment  Act,  duties  which  were 
equivalent,  in  their  construction  of  the  act,  to  what  is  now 
assigned  as  an  international  duty;  and  this  argument  thus 
concludes : 

When,  therefore,  Her  Majesty's  Government,  by  the  sixth  article 
of  the  Treaty  of  Washington,  agreed  that  the  arbitrators  should 
assume  that  Her  Majesty's  Government  had  undertaken  to  act 
upon  the  principles  set  forth  in  the  three  rules  (though  declining 
to  assent  to  them  as  a  statement  of  principles  of  international  law, 
which  were  in  force  at  the  time  when  the  claims  arose),  the  effect 
of  that  agreement  was  not  to  make  it  the  duty  of  the  arbitrators 
to  judge  retrospectively  of  the  conduct  of  Her  Majesty's  Govern 
ment,  according  to  any  false  hypothesis  of  law  or  fact,  but  to 
acknowledge,  as  a  rule  of  judgment  for  the  purposes  of  the  treaty, 
the  undertaking  which  the  British  Government  had  actually,  and 
repeatedly  given  to  the  Government  of  the  United  States,  to  act 
upon  the  construction  which  they  themselves  placed  upon  the 
prohibitions  of  their  own  municipal  law,  according  to  which  it  was 
coincident  in  substance  with  those  rules. — British  Special  Argu 
ment,  sec.  5. 

Now  we  may  very  briefly,  as  we  think,  dispose  of  this  sug 
gestion,  and  of  all  the  influences  that  it  is  appealed  to  to 
exert  throughout  the  course  of  the  discussion  in  aid  of  the 
views  insisted  upon  by  the  learned  Counsel.  In  the  first 
place,  it  is  not  a  correct  statement  of  the  treaty  to  say,  that 
the  obligation  of  these  rules,  and  the  responsibility  on  the 
part  of  Great  Britain  to  have  its  conduct  judged  according 
to  those  rules,  arise  from  the  assent  of  Her  Majesty  thus 
expressed.  On  the  contrary,  that  assent  comes  in  only  sub 
sequently  to  the  authoritative  statement  of  the  rules,  and 
simply  as  a  qualification  attendant  upon  a  reservation  on 


THE  ALABAMA  CLAIMS  589 

the  part  of  Her  Majesty,  that  the  previous  declaration  shall 
not  be  esteemed  as  an  assent  on  the  part  of  the  British  Govern 
ment,  that  those  were  in  fact  the  principles  of  the  law  of 
nations  at  the  time  the  transactions  occurred. 

The  sixth  article  of  the  treaty  thus  determines  the  author 
ity  and  the  obligation  of  these  rules.  I  read  from  the  very 
commencement  of  the  article: 

"In  deciding  the  matters  submitted  to  the  arbitrators 
they  shall  be  governed  by  the  following  three  rules  which 
are  agreed  upon  by  the  high  contracting  parties  as  rules  to 
be  taken  as  applicable  to  the  case  and  by  such  principles  of 
International  Law  not  inconsistent  therewith";  and  then 
the  rules  are  stated. 

Now,  there  had  been  a  debate  between  the  diplomatic  rep 
resentatives  of  the  two  Governments,  whether  the  duties 
expressed  in  those  rules  were  wholly  of  international  obliga 
tion  antecedent  to  this  agreement  of  the  parties.  The 
United  States  had  from  the  beginning  insisted  that  they 
were;  Great  Britain  had  insisted  that,  in  regard  to  the  out 
fit  and  equipment  of  an  unarmed  ship  from  its  ports,  there 
was  only  an  obligation  of  municipal  law  and  not  of  inter 
national  law;  that  its  duty  concerning  such  outfit  was 
wholly  limited  to  the  execution  of  its  Foreign  Enlistment 
Act;  that  the  discharge  of  that  duty  and  its  responsibility 
for  any  default  therein,  could  not  be  claimed  by  the  United 
States  as  matter  of  international  law,  nor  upon  any  judg 
ment  otherwise  than  of  the  general  duty  of  a  neutral  to 
execute  its  laws,  whatever  they  might  be,  with  impartiality 
between  the  belligerents. 

To  close  that  debate,  and  in  advance  of  the  submission  of 
any  question  to  this  Tribunal,  the  law  on  that  subject  was 
settled  by  the  treaty,  and  settled  in  terms  which,  so  far  as 
the  obligation  of  the  law  goes,  seem  to  us  to  admit  of  no 
debate,  and  to  be  exposed  to  not  the  least  uncertainty  or 
doubt.  But  in  order  that  it  might  not  be  an  imputation 


590         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

upon  the  Government  of  Great  Britain,  that  while  it  pres 
ently  agreed  that  the  duties  of  a  neutral  were  as  these  rules 
express  them,  and  that  these  rules  were  applicable  to  this 
case,  that  a  neutral  nation  was  bound  to  conform  to  them, 
and  that  they  should  govern  this  Tribunal  in  its  decision — 
in  order  that  from  all  this  there  might  not  arise  an  imputa 
tion  that  the  conduct  of  Great  Britain,  at  the  time  of  the 
transactions  (if  it  should  be  found  in  the  judgment  of  this 
Tribunal  to  have  been  at  variance  with  these  rules),  would 
be  subject  to  the  charge  of  a  variance  with  an  acknowledg 
ment  of  the  rules  then  presently  admitted  as  binding,  a 
reservation  was  made.  What  was  that  reservation? 

Her  Britannic  Majesty  has  commanded  her  High  Commis 
sioners  and  Plenipotentiaries  to  declare  that  Her  Majesty's  Govern 
ment  cannot  assent  to  the  foregoing  rules  as  a  statement  of  princi 
ples  of  international  law  which  were  in  force  at  the  time  when  the 
claims  mentioned  in  Article  I  arose,  but  that  Her  Majesty's  Gov 
ernment,  in  order  to  evince  its  desire  of  strengthening  the  friendly 
relations  between  the  two  countries,  and  of  making  satisfactory 
provision  for  the  future,  agrees  that  in  deciding  the  questions 
between  the  two  countries  arising  out  of  these  claims,  the  arbitra 
tors  should  assume  that  Her  Majesty's  Government  had  under 
taken  to  act  upon  the  principles  set  forth  in  these  rules. 

Thus,  while  this  saving  clause  in  respect  to  the  past  con 
duct  of  Great  Britain  was  allowed  on  the  declaration  of 
Her  Majesty,  yet  that  declaration  was  admitted  into  the 
treaty  only  upon  the  express  proviso  that  it  should  have  no 
import  of  any  kind  in  disparaging  the  obligation  of  the  rules, 
their  significance,  their  binding  force,  or  the  principles  upon 
which  this  Tribunal  should  judge  concerning  them. 

Shall  it  be  said  that  when  the  whole  office  of  this  clause, 
thus  referred  to,  is  of  that  nature  and  extent  only,  and  when 
it  ends  in  the  determination  that  that  reservation  shall  have 
no  effect  upon  your  decision,  shall  it,  I  say,  be  claimed  that 
this  reservation  shall  bave  a&  effect  upon  the  argument? 


THE  ALABAMA  CLAIMS  591 

How  shall  it  be  pretended,  before  a  Tribunal  like  this,  that 
what  is  to  be  assumed  in  the  decision  is  not  to  be  assumed  in 
the  argument! 

But  what  does  this  mean?  Does  it  mean  that  these  three 
rules,  in  their  future  application  to  the  conduct  of  the  United 
States — nay,  in  their  future  application  to  the  conduct  of 
Great  Britain,  mean  something  different  from  what  they 
mean  in  their  application  to  the  past?  What  becomes, 
then,  of  the  purchasing  consideration  of  these  rules  for  the 
future,  to  wit,  that,  waiving  debate,  they  shall  be  applied  to 
the  past? 

We  must  therefore  insist  that,  upon  the  plain  declarations 
of  this  treaty,  there  is  nothing  whatever  in  this  proposition 
of  the  first  five  sections  of  the  new  special  argument.  If 
there  were  anything  in  it,  it  would  go  to  the  rupture,  almost, 
of  the  treaty;  for  the  language  is  plain,  the  motive  is  de 
clared,  the  force  in  future  is  not  in  dispute,  and,  for  the  con 
sideration  of  that  force  in  the  future,  the  same  force  is  to  be 
applied  in  the  judgment  of  this  Tribunal  upon  the  past. 
Now,  it  is  said  that  this  declaration  of  the  binding  authority 
of  these  rules  is  to  read  in  the  sense  of  this  very  complicated, 
somewhat  unintelligible,  proposition  of  the  learned  Counsel. 
Compare  his  words  with  the  declaration  of  the  binding  au 
thority  of  these  rules,  as  Rules  of  International  Law,  actually 
found  in  the  treaty,  and  judge  for  yourselves  whether  the 
two  forms  of  expression  are  equivalent  and  interchangeable. 

Can  any  one  imagine  that  the  United  States  would  have 
agreed  that  the  construction,  in  its  application  to  the  past, 
was  to  be  of  this  modified,  uncertain,  optional  character, 
while,  in  the  future,  the  rules  were  to  be  authoritative,  bind 
ing  rules  of  the  law  of  nations?  When  the  United  States 
had  given  an  assent,  by  convention,  to  the  law  that  was  to 
govern  this  Tribunal,  was  it  intended  that  that  law  should 
be  construed,  as  to  the  past,  differently  from  what  it  was  to 
be  construed  in  reference  to  the  future? 


592         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

I  apprehend  that  this  learned  Tribunal  will  at  once  dis 
miss  this  consideration,  with  all  its  important  influence  upon 
the  whole  subsequent  argument  of  the  eminent  Counsel, 
which  an  attentive  examination  of  that  argument  will  dis 
close. 

With  this  proposition  falls  the  farther  proposition,  already 
met  in  our  former  argument,  that  it  is  material  to  go  into 
the  region  of  debate  as  to  what  the  law  of  nations  upon  these 
subjects,  now  under  review,  was  or  is.  So  far  as  it  falls 
within  the  range  covered  by  these  rules  of  the  treaty,  their 
provisions  have  concluded  the  controversy.  To  what  pur 
pose,  then,  pursue  an  inquiry  and  a  course  of  argument 
which,  whatever  way  in  the  balance  of  your  conclusions  it 
may  be  determined,  cannot  affect  your  judgment,  or  your 
award?  If  these  rules  are  found  to  be  conformed  to  the  law 
of  nations  in  the  principles  which  it  held  antecedent  to  their 
adoption,  the  rules  cannot  have  for  that  reason  any  greater 
force  than  by  their  own  simple,  unconfirmed  authority.  If 
they  differ  from,  if  they  exceed,  if  they  transgress  the  re 
quirements  of  the  law  of  nations,  as  it  stood  antecedent  to 
the  treaty,  by  so  much  the  greater  force  does  the  convention 
of  the  parties  require  that,  for  this  trial  and  for  this  judg 
ment,  these  rules  are  to  be  the  law  of  this  Tribunal.  This 
argument  is  hinted  at  in  the  counter-case  of  the  British 
Government;  it  has  been  the  subject  of  some  public  discus 
sion  in  the  press  of  Great  Britain.  But  the  most  authorita 
tive  expression  of  opinion  upon  this  point  from  the  press  of 
that  country,  has  not  failed  to  stigmatize  this  suggestion  as 
bringing  the  obligation  of  the  rules  of  this  treaty  down  to 
"the  vanishing  point."  * 

At  the  close  of  the  special  argument  we  find  a  general  pres 
entation  of  canons  for  the  construction  of  treaties,  and  some 
general  observations  as  to  the  light  or  the  controlling  reason 

*  "  London  Times,"  February,  1872. 


THE  ALABAMA  CLAIMS  593 

under  which  these  rules  of  the  treaty  should  be  construed. 
These  suggestions  may  be  briefly  dismissed. 

It  certainly  would  be  a  very  great  reproach  to  these 
nations,  which  had  deliberately  fixed  upon  three  proposi 
tions  as  expressive  of  the  law  of  nations,  in  their  judgment, 
for  the  purposes  of  this  trial,  that  a  resort  to  general  instruc 
tions,  for  the  purpose  of  interpretation,  was  necessary. 
Eleven  canons  of  interpretation  drawn  from  Vattel,  are  pre 
sented  in  order,  and  then  several  of  them,  as  the  case  suits, 
are  applied  as  valuable  in  elucidating  this  or  that  point  of 
the  rules.  But  the  learned  Counsel  has  omitted  to  bring  to 
your  notice  the  first  and  most  general  rule  of  Vattel,  which, 
being  once  understood,  would,  as  we  think,  dispense  with 
any  consideration  of  these  subordinate  canons  which  Vattel 
has  introduced  to  be  used  only  in  case  his  first  general  rule 
does  not  apply.  This  first  proposition  is,  that  "it  is  not 
allowable  to  interpret  what  has  no  need  of  interpretation." 

Now  these  rules  of  the  treaty  are  the  deliberate  and  care 
ful  expression  of  the  will  of  the  two  nations  in  establishing 
the  law  for  the  government  of  this  Tribunal,  which  the 
treaty  calls  into  existence.  These  rules  need  no  interpreta 
tion  in  any  general  sense.  Undoubtedly  there  may  be 
phrases  which  may  receive  some  illustration  or  elucidation 
from  the  history  and  from  the  principles  of  the  law  of  na 
tions;  and  to  that  we  have  no  objection.  Instances  of  very 
proper  application  to  that  resort,  occur  in  the  argument  to 
which  I  am  now  replying.  But  there  can  be  no  possible 
need  to  resort  to  any  general  rules,  such  as  those  most 
favored  and  insisted  upon  by  the  learned  Counsel,  viz.,  the 
sixth  proposition  of  Vattel,  that  you  never  should  accept  an 
interpretation  that  leads  to  an  absurdity, — or  the  tenth,  that 
you  never  should  accept  an  interpretation  that  leads  to  a 
crime.  Nor  do  we  need  to  recur  to  Vattel  for  what  is  cer 
tainly  a  most  sensible  proposition,  that  the  reason  of  the 
treaty, — that  is  to  say,  the  motive  which  led  to  the  making 

40 


594         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

of  it  and  the  object  in  contemplation  at  the  time, — is  the 
most  certain  clue  to  lead  us  to  the  discovery  of  its  true 
meaning. 

But  the  inference  drawn  from  that  proposition,  in  its 
application  to  this  case,  by  the  learned  Counsel,  seems  very 
wide  from  what  to  us  appears  natural  and  sensible.  The 
aid  which  he  seeks  under  the  guidance  of  this  rule,  is  from 
the  abstract  propositions  of  publicists  on  cognate  subjects, 
or  the  illustrative  instances  given  by  legal  commentators. 

Our  view  of  the  matter  is,  that,  as  this  treaty  is  applied 
to  the  past,  as  it  is  applied  to  an  actual  situation  between 
the  two  nations,  and  as  it  is  applied  to  settle  the  doubts  and 
disputes  which  existed  between  them  as  to  obligation,  and 
to  the  performance  of  obligations,  these  considerations  fur 
nish  the  resort,  if  any  is  needed,  whereby  this  Tribunal  should 
seek  to  determine  what  the  true  meaning  of  the  High  Con 
tracting  Parties  is. 

Now,  as  bearing  upon  all  these  three  topics,  of  due  dili 
gence,  of  treatment  of  offending  cruisers  in  their  subsequent 
visits  to  British  ports,  and  of  their  supply,  as  from  a  base  of 
operations,  with  the  means  of  continuing  the  war,  these  rules 
are  to  be  treated  in  reference  to  the  controversy  as  it  had 
arisen  and  as  it  was  in  progress  between  the  two  nations 
when  the  treaty  was  formed.  What  was  that?  Here  was 
a  nation  prosecuting  a  war  against  a  portion  of  its  popula 
tion  and  territory  in  revolt.  Against  the  sovereign  thus 
prosecuting  his  war,  there  was  raised  a  maritime  warfare. 
The  belligerent  itself  thus  prosecuting  this  maritime  warfare 
against  its  sovereign,  confessedly  had  no  ports  and  no  waters 
that  could  serve  as  the  base  of  its  naval  operations.  It  had 
no  ship-yards,  it  had  no  foundries,  it  had  no  means  or 
resources  by  which  it  could  maintain  or  keep  on  foot  that 
war.  A  project  and  a  purpose  of  war  was  all  that  could  have 
origin  from  within  its  territory,  and  the  pecuniary  resources 
by  which  it  could  derive  its  supply  from  neutral  nations  was 
all  that  it  could  furnish  towards  this  maritime  war. 


THE  ALABAMA  CLAIMS  595 

Now,  that  war  having  in  fact  been  kept  on  foot  and  having 
resulted  in  great  injuries  to  the  sovereign  belligerent,  gave 
occasion  to  a  controversy  between  that  sovereign  and  the 
neutral  nation  of  Great  Britain  as  to  whether  these  actual 
supplies,  these  actual  bases  of  maritime  war  from  and  in 
neutral  jurisdiction,  were  conformable  to  the  law  of  nations, 
or  in  violation  of  its  principles.  Of  course,  the  mere  fact 
that  this  war  had  thus  been  kept  on  foot  did  not,  of  itself, 
carry  the  neutral  responsibility.  But  it  did  bring  into  con 
troversy  the  opposing  positions  of  the  two  nations.  Great 
Britain  contended  during  the  course  of  the  transactions,  and 
after  their  close,  and  now  here  contends,  that,  however  much 
to  be  regretted,  these  transactions  did  not  place  any  respon 
sibility  upon  the  neutral,  because  they  had  been  effected  only 
by  such  communication  of  the  resources  of  the  people  of 
Great  Britain  as  under  international  law  was  innocent  and 
protected;  that  commercial  communication  and  the  resort 
for  asylum  or  hospitality  in  the  ports  was  the  entire  measure, 
comprehension  and  character  of  all  that  had  occurred  within 
the  neutral  jurisdiction  of.  Great  Britain.  The  United  States 
contended  to  the  contrary. 

What  then  was  the  solution  of  the  matter  which  settles 
amicably  this  great  dispute?  Why,  first,  that  the  principles 
of  the  law  of  nations  should  be  settled  by  convention,  as  they 
have  been,  and  that  they  should  furnish  the  guide  and  the 
control  of  your  decision;  second,  that  all  the  facts  of  the 
transactions  as  they  occurred  should  be  submitted  to  your 
final  and  satisfactory  determination;  and,  third,  that  the 
application  of  these  principles  of  law  settled  by  convention 
between  the  parties  to  these  facts  as  ascertained  by  your 
selves  should  be  made  by  yourselves,  and  should,  in  the  end, 
close  the  controversy,  and  be  accepted  as  satisfactory  to 
both  parties. 

In  this  view,  we  must  insist  that  there  is  no  occasion  to  go 
into  any  very  considerable  discussion  as  to  the  meaning  of 


596         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

these  rules,  unless  in  the  very  subordinate  sense  of  the  ex 
planation  of  a  phrase,  such  as  "base  of  operations,"  or 
"military  supplies,"  or  "recruitment  of  men,"  or  some  simi 
lar  matter. 

I  now  ask  your  attention  to  the  part  of  the  discussion 
which  relates  to  the  effect  of  a  "commission,"  which,  though 
made  the  subject  of  the  second  topic  named  by  the  Tribunal, 
and  taken  in  that  order  by  the  learned  Counsel,  I  propose 
first  to  consider. 

It  is  said  that  the  claims  of  the  United  States  in  this  be 
half,  as  made  in  their  argument,  rest  upon  an  exaggerated 
construction  of  the  second  clause  of  the  first  rule.  On  this 
point,  I  have  first  to  say,  that  the  construction  which  we 
put  upon  that  clause  is  not  exaggerated;  and,  in  the  second 
place,  that  these  claims  in  regard  to  the  duty  of  Great 
Britain  in  respect  to  commissioned  cruisers  that  have  had 
their  origin  in  an  illegal  outfit  in  violation  of  the  law  of 
nations,  as  settled  in  the  first  rule,  do  not  rest  exclusively 
upon  the  second  clause  of  the  first  rule.  They,  undoubt 
edly,  in  one  construction  of  that  clause,  find  an  adequate 
support  in  its  proposition;  but,  if  that  construction  should 
fail,  nevertheless,  the  duty  of  Great  Britain  in  dealing  with 
these  offending  cruisers  in  their  subsequent  resort  to  its  ports 
and  waters,  would  rest  upon  principles  quite  independent  of 
this  construction  of  the  second  clause. 

The  second  clause  of  that  rule  is  this:  "And  also  to  use 
like  diligence  to  prevent  the  departure  from  its  jurisdiction 
of  any  vessel  intended  to  cruise  or  carry  on  war  as  above, 
such  vessel  having  been  specially  adapted  in  whole  or  in  part 
within  such  jurisdiction  to  warlike  use." 

It  is  said  that  this  second  clause  of  the  first  rule  manifestly 
applies  only  to  the  original  departure  of  such  a  vessel  from 
the  British  jurisdiction,  while  its  purposes  of  unlawful  hos 
tility  still  remain  in  intention  merely,  and  have  not  been 
evidenced  by  execution, 


THE  ALABAMA  CLAIMS  59? 

If  this  means  that  a  vessel  that  had  made  its  first  evasion 
from  a  British  port,  under  circumstances  which  did  not 
inculpate  Great  Britain  for  failing  to  arrest  her,  and  then 
had  come  within  British  ports  a  second  time,  and  the  evi 
dence,  as  then  developed,  would  have  required  Great  Britain 
to  arrest  her,  and  would  have  inculpated  that  nation  for 
failure  so  to  do,  is  not  within  the  operation  of  this  rule,  I  am 
at  a  loss  to  understand  upon  what  principle  of  reason  this 
pretension  rests.  If  the  meaning  is  that  this  second  clause 
only  applies  to  such  offending  vessels  while  they  remain  in 
the  predicament  of  not  having  acquired  the  protection  of  a 
"commission,"  that  pretension  is  a  begging  of  the  question 
under  consideration,  to  wit,  what  the  effect  of  a  "commis 
sion"  is  under  the  circumstances  proposed. 

I  do  not  understand  exactly  whether  these  two  cases  are 
meant  to  be  covered  by  this  criticism  of  the  learned  Counsel. 
But  let  us  look  at  it.  Supposing  that  the  escape  of  the 
"Florida"  from  Liverpool,  in  the  first  instance,  was  not 
under  circumstances  which  made  it  an  injurious  violation  of 
neutrality  for  which  Great  Britain  was  responsible  to  the 
United  States,  that  is  to  say,  that  there  was  no  such  fault, 
from  inattention  to  evidence,  or  from  delay  or  inefficiency 
of  action,  as  made  Great  Britain  responsible  for  her  escape; 
and  supposing  when  she  entered  Liverpool  again,  as  the 
matter  then  stood  in  the  knowledge  of  the  Government,  the 
evidence  was  clear  and  the  duty  was  clear,  if  it  were  an 
original  case;  is  it  to  be  said  that  the  duty  is  not  as  strong, 
that  it  is  not  as  clear,  and  that  a  failure  to  perform  it  is  not 
as  clear  a  case  for  inculpation,  as  if  in  the  original  outset  the 
same  circumstances  of  failure  and  of  fault  had  been  apparent? 
Certainly  the  proposition  cannot  mean  this.  Certainly  the 
conduct  of  Great  Britain  in  regard  to  the  vessel  at  Nassau, 
a  British  port  into  which  she  went  after  her  escape  from 
Liverpool,  does  not  conform  to  this  suggestion.  But  if  the 
proposition  does  not  come  to  this  then  it  comes  back  to  the 


598        SPEECHES  OF  WILLIAM  MAXWELL  EVAKTS 

pretension  that  the  commission  intervening  terminates  the 
obligation,  defeats  the  duty,  and  exposes  the  suffering  bel 
ligerent  to  all  the  consequences  of  this  naval  war,  illegal  in 
its  origin,  illegal  in  its  character,  and,  on  the  part  of  the 
offending  belligerent,  an  outrage  upon  the  neutral  that  has 
suffered  it. 

Now  that  is  the  very  question  to  be  determined.  Un 
questionably,  we  submit  that  while  the  first  clause  of  the 
first  rule  is,  by  its  terms,  limited  to  an  original  equipment  or 
outfit  of  an  offending  vessel  the  second  clause  was  intended 
to  lay  down  the  obligation  of  detaining  in  port  and  of  pre 
venting  the  departure,  of  every  such  vessel  whenever  it 
should  come  within  British  jurisdiction.  I  omit  from  this 
present  statement,  of  course,  the  element  of  the  effect  of 
the  "commission,"  that  being  the  immediate  point  in  dispute. 

I  start  in  the  debate  of  that  question  with  this  view  of  the 
scope  and  efficacy  of  the  rule  itself. 

It  is  said,  however,  that  the  second  clause  of  the  first  rule 
is  to  be  qualified  in  its  apparent  signification  and  applica 
tion  by  the  supplying  a  phrase  used  in  the  first  clause,  which, 
it  is  said,  must  be  communicated  to  the  second.  That  quali 
fying  phrase  is  "any  vessel  which  it  has  reasonable  ground  to 
believe  is  intended,"  etc. 

Now,  this  qualification  is  in  the  first  clause,  and  it  is  not 
in  the  second.  Of  course,  this  element  of  having  "reason 
able  ground  to  believe"  that  the  offence  which  a  neutral  na 
tion  is  required  to  prevent  is  about  to  be  committed,  is  an 
element  of  the  question  of  due  diligence  always  fairly  to  be 
considered,  always  suitably  to  be  considered  in  judging 
either  of  the  conduct  of  Great  Britain  in  these  matters,  or  of 
the  conduct  of  the  United  States  in  the  past,  or  of  the  duty 
of  both  nations  in  the  future.  As  an  element  of  due  dili 
gence,  it  finds  its  place  in  the  second  clause  of  the  first  rule, 
but  only  as  an  element  of  due  diligence. 

Now,  upon  what  motive  does  this  distinction  between  the 


THE  ALABAMA  CLAIMS  599 

purview  of  the  first  clause  and  of  the  second  clause  rest? 
Why,  the  duty  in  regard  to  these  vessels  embraced  in  the 
first  clause  applies  to  the  inchoate  and  progressing  enterprise 
at  every  stage  of  fitting  out,  arming  or  equipping,  and  while 
that  enterprise  is,  or  may  be,  in  respect  to  evidence  of  its 
character,  involved  in  obscurity,  ambiguity  and  doubt.  It 
is,  therefore,  provided  that,  in  regard  to  that  duty,  only  such 
vessels  are  thus  subjected  to  interruption  in  the  progress  of 
construction  at  the  responsibility  of  the  neutral,  as  the  neu 
tral  has  "reasonable  ground  to  believe"  are  intended  for  an 
unlawful  purpose,  which  purpose  the  vessel  itself  does  not 
necessarily  disclose  either  in  regard  to  its  own  character  or 
of  its  intended  use.  But,  after  the  vessel  has  reached  its 
form  and  completed  its  structure,  why  then  it  is  a  sufficient 
limitation  of  the  obligation  and  sufficient  protection  against 
undue  responsibility,  that  "due  diligence  to  prevent"  the 
assigned  offence  is  alone  required.  Due  diligence  to  accom 
plish  the  required  duty  is  all  that  is  demanded  and  accord 
ingly  that  distinction  is  preserved.  It  is  made  the  clear  and 
absolute  duty  of  a  nation  to  use  due  diligence  to  prevent  the 
departure  from  its  jurisdiction  of  any  vessel  intended  to 
cruise  or  carry  on  war  against  a  power  with  which  it  is  at 
peace,  such  vessel  having  been  specially  adapted  in  whole  or 
in  part  within  such  jurisdiction  to  warlike  use.  That  is, 
when  a  vessel  has  become  ready  to  take  the  seas,  having  its 
character  of  warlike  adaptation  thus  determined  and  thus 
evidenced,  so  upon  its  subsequent  visit  to  the  neutral's  port, 
as  to  such  a  vessel,  the  duty  to  arrest  her  departure  is  limited 
only  by  the — 

CHIEF  JUSTICE  COCKBURN:  What  should  you  think,  Mr. 
Evarts,  of  such  a  case  as  this?  Suppose  a  vessel  had  es 
caped  from  Great  Britain  with  or  without  due  diligence 
being  observed — take  the  case  of  the  "Florida"  or  the 
"Shenandoah" — take  either  case.  She  puts  into  a  port 
belonging  to  the  British  Crown.  You  contend,  if  I  under- 


600         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

stand  your  argument,  that  she  ought  to  be  seized.  But 
suppose  the  authorities  at  the  port  into  which  she  puts  are 
not  aware  of  the  circumstances  under  which  the  vessel 
originally  left  the  shores  of  Great  Britain.  Is  there  an  ob 
ligation  to  seize  that  vessel?" 

MR.  EVARTS:  That,  like  everything  else,  is  left  as  matter 
of  fact. 

The  CHIEF  JUSTICE:  But  suppose  the  people  at  the  place 
are  perfectly  unaware  from  whence  this  vessel — 

MR.  EVARTS  :  I  understand  the  question.  We  are  not  call 
ing  in  judgment  the  authorities  at  this  or  that  place.  We  are 
calling  into  judgment  the  British  nation,  and  if  the  ignorance 
and  want  of  knowledge  in  the  subordinate  officials  at  such  a 
port  can  be  brought  to  the  fault  of  the  Home  Government 
in  not  advising  or  keeping  them  informed,  that  is  exactly 
the  condition  from  which  the  responsibility  arises.  It  is  a 
question  of  "due  diligence,"  or  not,  of  the  nation  in  all  its 
conduct  in  providing,  or  not  providing,  for  the  situation,  and 
in  preparing,  or  not  preparing,  its  officials  to  act  upon  suit 
able  knowledge. 

We  find  nothing  of  any  limitation  of  this  second  clause  of 
the  first  rule  that  prevents  our  considering  its  proper  appli 
cation  to  the  case  of  a  vessel,  which,  for  the  purpose  of  the 
present  argument,  it  must  be  conceded  ought  to  be  arrested 
under  it,  and  detained  in  port  if  the  "commission"  does  not 
interpose  an  obstacle. 

We  have  laid  down  at  pages  from  331  to  333,  in  our  argu- 
menfy  what  we  consider  the  rules  of  law  in  regard  to  the 
effect  of  the  "commission"  of  a  sovereign  nation,  or  of  a 
belligerent  not  recognized  as  a  sovereign,  in  the  circumstances 
involved  in  this  inquiry.  They  are  very  simple.  I  find 
nothing  in  the  argument  of  my  learned  friend,  careful  and 
intelligent  as  it  is,  that  disturbs  these  rules  as  rules  of  law. 
The  public  ship  of  a  nation,  received  into  the  waters  or  ports 
of  another  nation  is,  by  the  practice  of  nations,  as  a  conces- 


THE  ALABAMA  CLAIMS  601 

sion  to  the  sovereign's  dignity,  exempt  from  the  jurisdiction 
of  the  courts  and  all  judicial  process  of  the  nation  whose 
waters  it  visits.  This  is  a  concession,  mutual,  reciprocal 
between  nations  having  this  kind  of  intercourse,  and  resting 
upon  the  best  and  surest  principles  of  international  comity. 
But  there  is  no  concession  of  extra-territoriality  to  the  effect 
or  extent  that  the  sovereign  visited  is  predominated  over  by 
the  sovereign  receiving  hospitality  to  its  public  vessels.  The 
principle  simply  is,  that  the  treatment  of  the  vessel  rests 
upon  considerations  between  the  nations  as  sovereign,  and 
in  their  political  capacities,  as  matter  to  be  dealt  with  di 
rectly  between  them,  under  reciprocal  responsibility  for  of 
fence  on  either  side,  and  under  the  duty  of  preserving  rela 
tions  of  peace  and  good  will  if  you  please,  but,  nevertheless, 
to  be  controlled  by  reasons  of  state. 

Any  construction  of  the  rule  that  would  allow  the  visiting 
vessel  to  impose  its  own  sovereignty  upon  the  sovereign 
visited,  would  be  to  push  the  rule  to  an  extreme  that  would 
defeat  its  purpose.  It  is  the  equality  of  sovereigns  that 
requires  that  the  process  and  the  jurisdiction  of  courts  should 
not  be  extended  to  public  vessels. 

But  all  other  qualifications  as  to  how  the  sovereign  visited 
shall  deal  with  public  vessels,  rest  in  the  discretion  of  the 
sovereign.  If  offence  is  committed  by  such  vessels,  or  any 
duty  arises  in  respect  to  them,  he,  at  his  discretion  and  under 
international  responsibility,  makes  it  the  subject  of  remon 
strance,  makes  it  the  subject  of  resentment,  makes  it  the 
subject  of  reprisal,  or  makes  it  the  subject  of  an  immediate 
exercise  of  force,  if  the  circumstances  seem  to  exact  it. 

What,  then,  is  the  tenor  of  the  authorities,  in  respect  to  a 
public  vessel  not  of  a  sovereign,  but  of  a  belligerent,  who  has 
not  been  recognized  as  a  sovereign?  The  courts  of  the  coun 
try,  when  the  question  arises  as  a  judicial  one,  turn  to  the 
political  authority,  and  ask  how  that  has  determined  the 
question  of  the  public  character  of  such  vessels;  and  if  that 


602          SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

question  (which  is  a  political  one)  has  been  determined  in 
recognition  of  the  belligerency,  then  the  vessel  of  the  bellig 
erent  is  treated  as  exempt  from  judicial  process  and  from  the 
jurisdiction  of  the  courts.  But  that  vessel  remains  subject 
to  the  control,  subject  to  the  dominion  of  the  sovereign 
whose  ports  it  has  visited,  and  it  remains  there  under  the 
character  of  a  limited  recognition,  and  not  in  the  public 
character  of  a  representative  of  recognized  sovereignty. 

We  understand  the  motives  by  which  belligerency  is  rec 
ognized  while  sovereignty  is  refused.  They  are  the  motives 
of  humanity:  they  are  the  motives  of  fair  play;  they  are  the 
motives  of  neutral  recognition  of  the  actual  features  of  the 
strife  of  violence  that  is  in  progress.  But  it  is  in  vain  to 
recognize  belligerency  and  deny  sovereignty,  if  you  are  going 
to  attract  one  by  one  all  the  traits  of  sovereignty,  in  the  rela 
tions  with  a  power  merely  recognized  as  belligerent  and  to 
whom  sovereignty  has  been  denied. 

What  is  the  difference  of  predicament?  Why,  the  neutral 
nation,  when  it  has  occasion  to  take  offence  or  exercise  its 
rights  with  reference  to  a  belligerent  vessel  not  representing 
a  sovereign,  finds  no  sovereign  behind  that  vessel  to  which 
it  can  appeal,  to  which  it  can  remonstrate,  by  which  through 
diplomacy,  by  which  through  reprisals,  by  which  in  resent 
ments,  it  can  make  itself  felt,  its  dominion  respected,  and  its 
authority  obeyed.  It  then  deals  with  these  belligerent  ves 
sels,  not  unjustly,  not  capriciously,  for  injustice  and  caprice 
are  wrong  toward  whomsoever  they  are  exercised,  but, 
nevertheless,  upon  the  responsibility  that  its  dealing  must 
reach  the  conduct,  and  that  the  vessel  and  its  conduct  are 
the  only  existing  power  and  force  to  which  it  can  apply 
itself. 

I  apprehend  that  there  is  no  authority  from  any  book  that 
disturbs  in  the  least  this  proposition,  or  carries  the  respect 
to  belligerent  vessels  beyond  the  exemption  from  jurisdic 
tion  of  courts  and  judicial  process.  The  rule  of  law  being 


THE  ALABAMA  CLAIMS  603 

of  this  nature,  the  question,  then,  of  how  a  neutral  shall  deal 
with  one  of  these  cruisers  that  owes  its  existence  to  a  viola 
tion  of  its  neutral  rights,  and  then  presents  itself  for  hospi 
tality  in  a  port  of  the  neutral,  is  a  question  for  the  neutral 
to  determine  according  to  its  duty  to  itself,  in  respect  to  its 
violated  neutrality  and  its  duty  to  the  sovereign  belligerent, 
who  will  lay  to  its  charge  the  consequences  and  the  respon 
sibility  for  this  offending  belligerent. 

Now,  I  find  in  the  propositions  of  the  eminent  Counsel  a 
clear  recognition  of  these  principles  of  power  on  the  part  of 
the  sovereign,  and  of  right  on  the  part  of  the  sovereign,  re 
quiring  only  that  the  power  should  be  exercised  suitably,  and 
under  circumstances  which  will  prevent  it  from  working  op 
pression  or  unnecessary  injury.  That  makes  it  a  question, 
therefore,  as  to  the  dealing  of  the  sovereign  for  which  the 
law  of  nations  applies  no  absolute  rule.  It  then  becomes  a 
question  for  the  Tribunal  whether  (under  these  circum 
stances  of  cruisers,  that  owe  their  origin,  or  their  power  to 
commit  these  injuries,  to  their  violation  of  neutrality),  Great 
Britain  is  responsible  to  the  injured  sovereign,  the  United 
States,  for  this  breach  of  neutrality,  for  this  unlawful  birth, 
for  this  unlawful  support  of  these  offending  cruisers.  As  to 
what  the  duty  of  a  neutral  nation  is  in  these  circumstances 
and  in  these  relations,  when  the  offending  cruiser  is  again 
placed  within  its  power,  I  find  really  no  objection  made  to 
the  peremptory  course  we  insist  upon,  except  that  seizing 
such  a  vessel,  without  previous  notice,  would  be  impolite, 
would  be  a  violation  of  comity,  would  be  a  violation  of  the 
decorous  practice  of  nations,  and  would  be  so  far  a  wrong. 

Well,  let  us  not  discuss  these  questions  in  the  abstract 
merely;  let  us  apply  the  inquiry  to  the  actual  conduct  of 
Great  Britain  in  the  actual  circumstances  of  the  career  of 
these  cruisers.  If  Great  Britain  claimed  exemption  from 
liability  to  the  United  States  by  saying  that,  when  these 
cruisers  had,  confessedly,  in  fact  escaped  in  violation  of 


604          SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

neutrality,  and  confessedly  were  on  the  seas  propagating 
those  enormous  injuries  to  the  property  and  commerce  of  a 
friendly  nation,  it  had  promptly  given  notice  that  no  one  of 
them  should  ever  after  enter  its  ports,  and  that,  if  it  did 
enter  its  ports,  it  would  be  seized  and  detained,  then  this 
charge  that  the  conduct  of  Great  Britain  towards  these 
cruisers  in  their  subsequent  visits  to  its  ports,  was  such  as  to 
make  it  responsible  for  their  original  escape  or  for  their  sub 
sequent  career,  would  be  met  by  this  palliation  or  this  de 
fence.  But  no  such  case  arises  upon  the  proofs.  You  have 
then,  on  the  one  hand,  a  clear  duty  towards  the  offended 
belligerent,  and  on  the  other  only  the  supposed  obligation  of 
courtesy  or  comity  towards  the  offending  belligerent.  This 
courtesy,  this  comity,  it  is  conceded,  can  be  terminated  at 
any  time  at  the  will  of  the  neutral  sovereign.  But  this 
comity  or  this  courtesy  has  not  been  withdrawn  by  any 
notice,  or  by  any  act  of  Great  Britain,  during  the  entire 
career  of  these  vessels. 

We  say  then,  in  the  first  place,  that  there  is  no  actual  situ 
ation  which  calls  for  a  consideration  of  this  palliative  de 
fence;  because  the  circumstances  do  not  raise  it  for  considera 
tion.  On  the  contrary,  the  facts  as  recorded  show  the  most 
absolute  indifference,  on  the  part  of  Great  Britain,  to  the 
protracted  continuance  of  the  ravages  of  the  "Alabama"  and 
of  the  "Florida,"  whose  escape  is  admitted  to  be  a  scandal 
and  a  reproach  to  Great  Britain,  until  the  very  end  of  the 
war. 

And,  yet,  a  subtraction  of  comity,  a  withdrawal  of  cour 
tesy  was  all  that  was  necessary  to  have  determined  their 
careers. 

But,  further,  let  us  look  a  little  carefully  at  this  idea  that 
a  cruiser,  illegally  at  sea  by  violation  of  the  neutrality  of  the 
nation  which  has  given  it  birth,  is  in  a  condition,  on  its  first 
visit  to  the  ports  of  the  offended  neutral,  after  the  commis 
sion  of  the  offence,  to  claim  the  allowance  of  courtesy  or 


THE  ALABAMA  CLAIMS  605 

comity.  Can  it  claim  courtesy  or  comity,  by  reason  of  any 
thing  that  has  proceeded  from  the  neutral  nation  to  encour 
age  that  expectation?  On  the  contrary,  so  far  from  its  being 
a  cruiser  that  has  a  right  to  be  upon  the  sea,  and  to  be  a 
claimant  of  hospitality,  it  is  a  cruiser,  on  the  principles  of 
international  law  (by  reason  of  its  guilty  origin,  and  of  the 
necessary  consequences  of  this  guilt  to  be  visited  upon  the 
offended  neutral),  for  whose  hostile  ravages  the  British 
Government  is  responsible.  What  courtesy,  then,  does  that 
Government  owe  to  a  belligerent  cruiser  that  thus  practised 
fraud  and  violence  upon  its  neutrality  and  exposed  it  to  this 
odious  responsibility?  Why  does  the  offending  cruiser  need 
notice  that  it  will  receive  the  treatment  appropriate  to  its 
misconduct  and  to  the  interests  and  duty  of  the  offended 
neutral?  It  is  certainly  aware  of  the  defects  of  its  origin, 
of  the  injury  done  to  the  neutral,  and  of  the  responsibility 
entailed  upon  the  neutral  for  the  injury  to  the  other  bel 
ligerent.  We  apprehend  that  this  objection  of  courtesy  to 
the  guilty  cruiser,  that  is  set  up  as  the  only  obstacle  to  the 
exercise  of  an  admitted  power,  that  this  objection  which 
maintains  that  a  power  just  in  itself,  if  executed  without 
notice,  thereby  becomes  an  imposition  and  a  fraud  upon  the 
offender,  because  no  denial  of  hospitality  has  been  previously 
announced,  is  an  objection  which  leaves  the  ravages  of  such 
a  cruiser  entirely  at  the  responsibility  of  the  neutral  which 
has  failed  to  intercept  it. 

It  is  said  in  the  special  argument  of  the  learned  Counsel, 
that  no  authority  can  be  found  for  this  exercise  of  direct 
sovereignty  on  the  part  of  an  offended  neutral  towards  a 
cruiser  of  either  a  recognized  or  an  unrecognized  sovereignty. 
But  this  after  all  comes  only  to  this,  that  such  an  exercise  of 
direct  control  over  a  cruiser,  on  the  part  of  an  offended  neu 
tral,  without  notice,  is  not  according  to  the  common  course 
of  hospitality  for  public  vessels  whether  of  a  recognized 
sovereign  or  of  a  recognized  belligerent.  As  to  the  right  to 


606          SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

exercise  direct  authority  on  the  part  of  the  displeased  neu 
tral,  to  secure  itself  against  insult  or  intrusion  on  the  part  of 
a  cruiser  that  has  once  offended  its  neutrality,  there  is  no 
doubt. 

The  argument  that  this  direct  control  may  be  exercised  by 
the  displeased  neutral  without  the  intervention  of  notice, 
when  the  gravity  and  nature  of  the  offence  against  neutrality 
on  the  part  of  the  belligerent  justify  this  measure  of  resent 
ment  and  resistance,  needs  no  instance  and  no  authority  for 
its  support.  In  its  nature,  it  is  a  question  wholly  dependent 
upon  circumstances. 

Our  proposition  is,  that  all  of  these  cruisers  drew  their 
origin  out  of  the  violated  neutrality  of  Great  Britain,  ex 
posing  that  nation  to  accountability  to  the  United  States  for 
their  hostilities.  Now,  to  say  that  a  nation  thus  situated  is 
required  by  any  principles  of  comity  to  extend  a  notice  be 
fore  exercising  control  over  the  offenders  brought  within  its 
power,  seems  to  us  to  make  justice  and  right,  in  the  gravest 
responsibilities,  yield  to  mere  ceremonial  politeness. 

To  meet,  however,  this  claim  on  our  part,  it  is  insisted,  in 
this  special  argument,  that  the  equipment  and  outfit  of  a 
cruiser  in  a  neutral  port,  if  it  goes  out  unarmed  (though 
capable  of  becoming  an  instrument  of  offensive  or  defensive 
war  by  the  mere  addition  of  an  armament),  may  be  an 
illegal  act  as  an  offence  against  municipal  law,  but  is  not  a 
violation  of  neutrality  in  the  sense  of  being  a  hostile  act,  and 
does  not  place  the  offending  cruiser  in  the  position  of  having 
violated  neutrality.  That  is  but  a  recurrence  to  the  subtle 
doctrine  that  the  obligations  of  Great  Britain  in  respect  to 
the  first  rule  of  the  treaty,  are  not,  by  the  terms  of  the  treaty, 
made  international  obligations,  for  the  observance  of  which 
she  is  responsible  under  the  law  of  nations,  and  for  the  per 
missive  violation  of  which  she  is  liable,  as  having  allowed, 
in  the  sense  of  the  law  of  nations  a  hostile  act  to  be  perpe 
trated  on  her  territory. 


THE  ALABAMA  CLAIMS  607 

This  distinction  between  a  merely  illegal  act  and  a  hostile 
act,  which  is  a  violation  of  neutrality,  is  made,  of  course,  and 
depends  wholly,  upon  the  distinction  of  the  evasion  of  an 
unarmed  ship-of-war  being  prohibited  only  by  municipal  law 
and  not  by  the  law  of  nations,  while  the  evasion  of  an  armed 
ship  is  prohibited  by  the  law  of  nations.  This  is  a  renewal 
of  the  debate  between  the  two  nations  as  to  what  the  rule  of 
the  law  of  nations  in  this  respect  was.  But  this  debate  was 
finally  closed  by  the  treaty.  And,  confessedly,  on  every 
principle  of  reason,  the  moment  you  stamp  an  act  as  a  viola 
tion  of  neutrality,  you  include  it  in  the  list  of  acts  which  by 
the  law  of  nations  are  deemed  hostile  acts.  There  is  no  act 
that  the  law  of  nations  prohibits  within  the  neutral  jurisdic 
tion  that  is  not  in  the  nature  of  a  hostile  act,  that  is  not  in 
the  nature  of  an  act  of  war,  that  is  not  in  the  nature  of  an 
application  by  the  offending  belligerent  of  the  neutral  territory 
to  the  purposes  of  his  war  against  the  other  belligerent.  The 
law  of  nations  prohibits  it,  the  law  of  nations  punishes  it, 
the  law  of  nations  exacts  indemnity  for  it,  only  because  it  is 
a  hostile  act. 

Now,  suppose  it  were  debatable  before  the  Tribunal 
whether  the  emission  of  a  war-ship  without  the  addition  of 
her  armament,  was  a  violation  of  the  law  of  nations,  on  the 
same  reason,  and  only  on  that  reason,  it  would  be  debatable 
whether  it  were  a  hostile  act.  If  it  were  a  hostile  act,  it  was 
a  violation  of  the  law  of  nations ;  if  it  were  not  a  violation  of 
the  law  of  nations  it  was  not  so,  only  because  it  was  not  a 
hostile  act.  When,  therefore  the  rules  of  the  treaty  settle 
that  debate  in  favor  of  the  construction  claimed  by  the 
United  States  in  its  antecedent  history  and  conduct,  and 
determine  that  such  an  act  is  a  violation  of  the  law  of  na 
tions,  they  determine  that  it  is  a  hostile  act.  There  is  no 
escape  from  the  general  proposition  that  the  law  of  nations 
condemns  nothing  done  in  a  neutral  territory  unless  it  is 
done  in  the  nature  of  a  hostile  act.  And  when  you  debate 


608          SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

the  question  whether  any  given  act  within  neutral  jurisdic 
tion  is  or  is  not  forbidden  by  the  law  of  nations,  you  debate 
the  question  whether  it  is  a  hostile  act  or  not. 

Now,  it  is  said  that  this  outfit  without  the  addition  of  an 
armament  is  not  a  hostile  act  under  the  law  of  nations, 
antecedent  to  this  treaty.  That  is  immaterial  within  the 
premises  of  the  controversy  before  this  Tribunal. 

It  is  a  hostile  act  against  Great  Britain,  which  Great 
Britain — 

SIR  ALEXANDER  COCKBURN:  Do  I  understand  you,  Mr. 
Evarts,  to  say  that  such  an  act  is  a  hostile  act  against  Great 
Britain? 

MR.  EVARTS:  Yes,  a  hostile  violation  of  the  neutrality  of 
Great  Britain,  which,  if  not  repelled  with  due  diligence, 
makes  Great  Britain  responsible  for  it  as  a  hostile  act  within 
its  territory  against  the  United  States. 

This  argument  of  the  eminent  Counsel  concedes  that  if  an 
armament  is  added  to  a  vessel  within  the  neutral  territory 
it  is  a  hostile  act  within  that  territory,  it  is  a  hostile  expedi 
tion  set  forth  from  that  territory.  It  is  therefore  a  viola 
tion  of  the  law  of  nations,  and  if  due  diligence  is  not  used  to 
prevent  it,  it  is  an  act  for  which  Great  Britain  is  responsible. 
If  due  diligence  to  prevent  it  be  or  be  not  used,  it  is  an  offence 
against  the  neutral  nation  by  the  belligerent  which  has  con 
summated  the  act. 

A  neutral  nation,  against  the  rights  of  which  such  an  act 
has  been  committed,  to  wit,  the  illegally  fitting  out  a  war 
ship  without  armament  (condemned  by  the  law  of  nations 
as  settled  by  this  treaty),  is  under  no  obligation  whatever  of 
courtesy  or  comity  to  that  cruiser.  If,  under  such  circum 
stances,  Great  Britain  prefers  courtesy  and  comity  to  the 
offending  cruiser  and  its  sponsors,  rather  than  justice  and 
duty  to  the  United  States,  she  does  it  upon  motives  which 
satisfy  her  to  continue  her  responsibility  for  that  cruiser 
rather  than  to  terminiate  it.  Great  Britain  has  no  authority 


THE  ALABAMA  CLAIMS  609 

to  exercise  comity  and  courtesy  to  these  cruisers  at  the  ex 
pense  of  the  offended  belligerent,  the  United  States,  what 
ever  her  motives  may  be.  Undoubtedly  the  authorities 
conducting  the  rebellion  would  not  have  looked  with  equal 
favor  upon  Great  Britain,  if  she  had  terminated  the  career 
of  these  cruisers  by  seizing  them  or  excluding  them  from  her 
ports.  That  is  a  question  between  Great  Britain  and  the 
belligerent  that  has  violated  her  neutrality.  Having  the 
powers,  having  the  right,  the  question  of  courtesy  in  giving 
notice  was  to  be  determined  at  the  cost  of  Great  Britain  and 
not  at  the  expense  of  the  United  States.  But  it  ceases  to 
be  a  question  of  courtesy  when  the  notice  has  not  been  given 
at  all,  and  when  the  choice  has  thus  been  made  that  these 
cruisers  shall  be  permitted  to  continue  their  career  un 
checked. 

Now  on  this  question,  whether  the  building  of  a  vessel  of 
this  kind  without  the  addition  of  armament  is  proscribed  by 
the  law  of  nations,  and  proscribed  as  a  hostile  act  and  as  a 
violation  of  neutral  territory  (outside  of  the  rules  of  the 
treaty)  which  is  so  much  debated  in  this  special  argument,  I 
ask  attention  to  a  few  citations  most  of  which  have  been 
already  referred  to  in  the  American  case. 

Hautefeuille  as  cited  upon  page  170,  says: 

Le  fait  de  construire  un  batiment  de  guerre  pour  le  comte  d'un 
belligerant  ou  de  Farmer  dans  les  etats  neutres  est  une  violation  du 
territoire.  ...  II  peut  egalement  reclamer  le  desarmement  du 
batiment  illegalement  arme  sur  son  territoire  et  meme  le  detenir, 
s'il  entre  dans  quelque  lieu  soumis  a  sa  souverainete  jusqu'a  ce 
qu'il  ait  etc  desarme. 

Ortolan,  as  quoted  on  page  182  of  the  same  case,  passes 
upon  this  situation,  which  we  are  now  discussing,  as  follows : 

Nous  nous  rattacherons  pour  resoudre  en  droit  des  gens  les 
difficultes  que  presente  cette  nouvelle  situation,  a  un  principe  uni- 
versellement  etabli,  qui  se  formule  en  ce  peu  de  mots  "inviola- 
bilite  du  territoire  neutre."  Get  inviolabilite  est  un  droit  pour 

41 


610          SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

Fetat  neutre,  dont  le  territoire  ne  doit  pas  etre  atteint  par  les  fails 
de  guerre,  mais  elle  impose  aussi  a  ce  meme  etat  neutre  une  etroite 
obligation,  celle  de  ne  pas  permettre,  celle  d'empecher,  activement 
au  besoin,  Pemploi  de  ce  territoire  par  une  des  parties  ou  au  profit 
de  Tune  des  parties  belligerantes  dans  un  but  hostile  a  1'autre 
partie. 

And  this  very  question,  the  distinction  between  an  armed 
vessel  and  an  unarmed  vessel,  was  met  by  Lord  Westbury, 
in  observations  made  by  him,  and  which  are  quoted  in  the 
American  case  at  page  185.  He  said: 

There  was  one  rule  of  conduct  which  undoubtedly  civilized  na 
tions  had  agreed  to  observe,  and  it  was  that  the  territory  of  a 
neutral  should  not  be  the  base  of  military  operations  by  one  of  two 
belligerents  against  the  other.  In  speaking  of  the  base  of  opera 
tions,  he  must  to  a  certain  degree  differ  from  the  noble  earl  [Earl 
Russell].  It  was  not  a  question  whether  armed  ships  had  actually 
left  our  shores ;  but  it  was  a  question  whether  ships  with  a  view  to 
war  had  been  built  in  our  ports  by  one  of  two  belligerents.  They 
need  not  have  been  armed;  but  if  they  had  been  laid  down  and 
built  with  a  view  to  warlike  operations  by  one  of  two  belligerents, 
and  this  was  knowingly  permitted  to  be  done  by  a  neutral  power, 
it  was  unquestionably  a  breach  of  neutrality. 

Chancellor  Kent,  in  a  passage  cited  by  the  learned  Coun 
sel  with  approval,  speaking  of  the  action  of  the  United 
States  as  shown  in  the  rules  of  President  Washington's  ad 
ministration  (which  rules  are  also  subsequently  quoted  with 
approval  in  this  argument)  says  (Vol.  I,  p.  122) : 

The  Government  of  the  United  States  was  warranted  by  the  law 
and  practice  of  nations,  in  the  declaration  made  in  1793  of  the  rules 
of  neutrality,  which  were  particularly  recognized  as  necessary  to 
be  observed  by  the  belligerent  powers,  in  their  intercourse  with 
this  country.  These  rules  were  that  the  original  arming  or  equip 
ping  of  vessels  in  our  ports,  by  any  of  the  powers  at  war,  for  military 
service,  was  unlawful;  and  no  such  vessel  was  entitled  to  an  asylum  in 
our  ports. 


THE  ALABAMA  CLAIMS  611 

No  vessel  thus  equipped  was  entitled  to  an  asylum  in  the 
ports  of  the  nation  whose  neutrality  had  been  violated. 
The  Tribunal  will  not  fail  to  observe  that  these  principles 
were  applied  by  President  Washington  to  cruisers  even  of  an 
independent  nation,  recognized  as  a  sovereign.  It  was  the 
cruisers  of  France  that  were  under  consideration.  But  the 
propositions  of  this  special  argument,  and  the  course  actually 
pursued  by  Great  Britain,  in  according  its  homage  to  their 
flag  placed  these  insurgent  cruisers  on  a  much  higher  and 
more  inviolable  position  than  it  is  possible  to  concede  to 
cruisers  of  a  recognized  sovereign.  In  truth,  such  treatment 
accorded  to  such  cruisers  all  the  irresponsibility  of  pirates 
and  all  the  sanctity  of  public  ships  of  a  recognized  sover 
eignty.  It  accorded  the  irresponsibility  of  pirates,  because 
they  were  exempted  from  all  control,  and  there  was  no 
government  behind  them  to  be  made  responsible  for  them, 
to  be  resorted  to  for  their  correction  or  restraint,  and  to 
meet  the  resentments  of  the  offended  neutrals  in  the  shape 
of  nonintercourse,  of  reprisals,  or  of  war. 

The  action  of  Great  Britain,  under  this  doctrine  of  comity 
and  notice  as  applied  to  the  cruisers  of  this  belligerency, 
really  exempted  them,  from  the  beginning  to  the  end  of  their 
careers  on  the  ocean,  from  all  responsibility  whatever.  How 
long  could  such  conduct  toward  Great  Britain  in  violation  of 
her  neutrality,  as  was  practiced  by  this  belligerent,  how 
long  could  such  violations  of  the  neutrality  of  Great  Britain 
have  been  exercised  by  belligerent  France  without  remon 
strance,  and  if  that  remonstrance  were  unheeded,  without 
reprisals,  followed  finally  by  war?  Why  was  not  such  re 
course  taken  in  respect  to  these  cruisers,  to  the  power  behind 
them?  There  was  no  power  behind  them. 

I  ask,  also,  in  this  connection,  attention  to  1  Phillimore, 
pages  399  to  404,  and,  especially,  to  a  passage  extracted  from 
the  case  of  the  "Santissima  Trinidad,"  commenting  upon 
the  case  of  the  "Exchange,"  which  last  case  is  cited  at  con- 


612          SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

siderable  length  in  the  argument  of  the  eminent  Counsel. 
Now  the  "Exchange"  settles  nothing,  except  that  when  the 
political  authority  of  a  government  has  recognized  belliger 
ency,  the  courts  will  not  exercise  jurisdiction  over  the  ves 
sels  although  sovereignty  has  not  been  conceded  as  well. 

The  only  case  in  the  history  of  our  country  in  which  the 
political  authority  was  called  upon  to  deal  with  a  cruiser 
that  had  derived  its  origin  in  violation  of  our  neutrality  was 
the  case  of  a  public  ship  of  France,  the  "Cassius,"  originally 
"Les  Jumeaux."  The  legal  report  of  this  case  is  copied  in 
full  in  the  Appendix  of  the  British  case.  It  never  came  to 
any  other  determination  than  that  France,  the  recognized 
Government  of  France,  was  the  sponsor  for  the  "Cassius," 
and  it  was  on  the  respect  shown  to  a  sovereign  as  well  as  a 
public  belligerent  that  the  disposition  of  the  case,  exempting 
the  vessel  from  judicial  process,  was  made. 

SIR  ROUND  ELL  PALMER:    The  vessel  was  restored. 

MR.  EVARTS:  But  it  was  only  after  her  character  as  a  war 
vessel  had  ceased. 

SIR  ROUND  ELL  PALMER:  It  was  the  Government  of 
the  United  States,  by  its  executive  power,  that  directed 
the  ship  to  be  restored. 

MR.  EVARTS:  A  detailed  history  of  this  case,  legal  and 
political,  will  be  found  in  Vol.  VII  of  the  American  Ap 
pendix,  pages  18  to  23,  in  Mr.  Dana's  valuable  note. 

It  will  there  be  seen  that  the  occasion  for  our  Govern 
ment  to  determine  its  political  or  executive  action  never 
arose  until  after  the  determination  of  the  judicial  proceedings 
and  until  after  the  vessel  had  been  thrown  up  by  the  French 
Minister,  who  abandoned  her  to  the  United  States  Govern 
ment,  nor  until  after  she  was  a  worthless  hulk. 

SIR  ROUNDELL  PALMER:  Am  I  not  right  in  saying  that 
the  President  of  the  Executive  Government  of  the  United 
States  gave  notice  to  the  French  Minister  that  the  ship  was 
at  his  disposal? 


THE  ALABAMA  CLAIMS  613 

MR.  EVARTS:  After  it  had  been  abandoned,  after  it  had 
ceased  to  be  a  cruiser  capable  of  hostilities,  and  after  the 
opportunity  for  its  further  hostilities  had  ceased. 

LORD  TENDERDEN:  But  the  war  still  continued. 

MR.  EVARTS:  But,  I  mean  after  the  hostilities  of  that 
vessel  came  to  an  end. 

And  permit  me  to  say  this  condition  of  things  between 
the  United  States  and  France,  during  the  administration  of 
the  first  President  Adams,  came  substantially  to  a  war 
between  the  two  countries.* 

Now,  it  is  said  that  the  application  of  this  second  clause 
of  the  first  rule  of  the  treaty,  and  this  demand  that  deten 
tion  or  exclusion  shall  be  exercised  in  respect  to  cruisers  on 
their  subsequent  visits  to  ports,  do  not  apply  either  to  the 
"Georgia"  or  "Shenandoah,"  because  neither  the  "Georgia" 
nor  "Shenandoah,"  received  their  original  outfit  by  violation 
of  the  territory  of  Great  Britain,  not  even  in  the  view  of 
what  would  be  such  a  violation  taken  by  the  United  States. 

*A  passage  from  Mr.  Dana's  note  already  referred  to,  puts  this  matter  in  a  very 
clear  light. 

"As  the  'Cassius  was  taken  into  judicial  custody,  within  twenty-four  hours  of  her 
arrival,  and  remained  in  that  custody,  until  after  she  had  been  disarmed  and  dis 
mantled  by  the  French  Minister,  and  formally  abandoned  by  him  to  the  United 
States'  Government  with  a  reclamation  for  damages,  the  political  department  of 
the  United  States'  Government  never  had  practically  before  it  the  question,  what 
it  would  do  with  an  armed  foreign  vessel  of  war  within  its  control  which  had,  on 
a  previous  voyage,  before  it  became  a  vessel  of  war,  and  while  it  was  a  private 
vessel  of  French  citizens,  added  warlike  equipments  to  itself  within  our  ports,  in 
violation  of  our  statutes  for  the  preservation  of  our  neutrality.  When  it  came  out 
of  judicial  custody,  it  was  a  stripped,  deteriorated  and  abandoned  hulk,  and  was 
sold  as  such  by  public  auction.  The  only  political  action  of  our  government  con 
sisted  in  this:  It  refused  to  interfere  to  take  the  vessel  from  the  custody  of  the 
judiciary,  but  instructed  its  attorney  to  see  that  the  fact  of  its  being  a  bona  fide 
vessel  of  war  be  proved  and  brought  to  the  attention  of  the  court,  with  a  motion 
for  its  discharge  from  arrest  on  the  ground  of  its  exemption  as  a  public  ship,  if  it 
turned  out  to  be  so.  What  course  the  Executive  would  have  taken  as  to  the  vessel, 
if  it  had  passed  out  of  judicial  custody  before  it  was  abandoned  and  dismantled, 
does  not,  of  course,  appear.  And  that  is  the  only  question  of  interest  to  interna 
tional  law."  VII  American  Appendix,  p.  23;  Choix  de  Pieces,  etc.  t.  2,  p.  726. 


614         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

I  understand  that  to  be  the  position.  I  will  not  discuss  the 
facts  of  the  "Georgia"  and  "Shenandoah"  any  more  than 
of  any  other  vessel  in  this  regard.  If  the  "Shenandoah" 
and  "Georgia,"  in  the  conclusions  that  you  shall  arrive  at 
upon  the  facts  concerning  their  outfit,  shall  be  pronounced 
in  their  original  evasion  not  to  involve  culpability  on  the 
part  of  Great  Britain,  and  not  to  involve  violation  of  Great 
Britain's  territory  on  the  part  of  either  of  these  cruisers — 

SIR  ALEXANDER  COCKBURN:  Suppose,  Mr.  Evarts,  that 
the  departure  was  of  such  a  nature  as  not  to  involve  Great 
Britain  in  any  culpability  for  want  of  due  diligence,  still 
there  certainly  is  a  violation  of  territory. 

MR.  EVARTS:  That  is  the  point  I  was  coming  to  and  of 
that  I  entertain  no  doubt. 

You  must  find  upon  the  facts  that  there  was  no  evasion 
from  the  ports  of  Great  Britain  by  either  of  those  vessels 
under  circumstances  amounting  to  a  violation  of  the  neutral 
ity  of  Great  Britain  (on  the  part  of  the  vessels  and  on  the 
part  of  those  who  set  them  forth),  before  you  bring  them 
into  the  situation  where  the  resentment  for  a  violation  of 
neutrality,  which  I  have  insisted  upon,  was  not  required  to 
be  exhibited. 

I  am  not,  however,  here  to  discuss  the  questions  of  fact. 

I  will  take  up  what  is  made  the  subject  of  the  third  chapter 
of  the  special  argument  which  has  reference  to  coaling  and 
"the  base  of  naval  operations"  and  "military  supplies,"  as 
prohibited  by  the  second  rule  of  the  treaty. 

The  question  of  "coaling"  is  one  question  considered 
simply  under  the  law  of  hospitality  or  asylum  to  belligerent 
vessels  in  neutral  ports,  and  quite  another  considered,  under 
given  facts  and  circumstances,  as  an  element  in  the  pro 
scribed  use  of  neutral  ports  as  "a  base  of  naval  operations." 

At  the  outset  of  the  discussion  of  this  subject  it  is  said 
that  the  British  Government  dealt  fairly  and  impartially 
in  this  matter  of  coaling  with  the  vessels  of  the  two  belliger- 


THE  ALABAMA  CLAIMS  615 

ents,  and  that  the  real  complaint  on  the  part  of  the  United 
States  is  of  the  neutrality  which  Great  Britain  had  chosen  to 
assume  for  such  impartial  dealing  between  the  two  belliger 
ents.  If  that  were  our  complaint  it  is,  certainly,  out  of 
place  in  this  controversy,  for  we  are  dealing  with  the  con 
duct  of  Great  Britain  in  the  situation  produced  by  the 
Queen's  Proclamation  and  there  is  here  no  room  for  dis 
cussion  of  any  grievance  on  the  part  of  the  United  States 
from  the  public  act  of  Great  Britain  in  issuing  that  Proclama 
tion.  But  nothing  in  the  conduct  of  the  argument  on  our 
part  justifies  this  suggestion  of  the  eminent  Counsel. 

On  the  subject  of  "coaling,"  it  is  said  that  it  is  not,  of 
itself,  a  supply  of  contraband  of  war  or  of  military  aid. 
Not  of  itself.  The  grounds  and  occasions  on  which  we  com 
plain  of  coaling,  and  the  question  of  fact  whether  it  has  been 
fairly  dealt  out  as  between  the  belligerents,  connect  them 
selves  with  the  larger  subject  (which  is  so  fully  discussed 
under  this  head  by  the  eminent  Counsel),  a  topic  of  discus 
sion  of  which  coaling  is  merely  a  branch,  that  is  to  say,  the 
use  of  neutral  ports  and  waters  for  coaling,  victualling, 
repairs,  supplies  of  sails,  recruitment  of  men  for  navigation, 
etc.  These  may  or  may  not  be  obnoxious  to  censure  under 
the  law  of  nations  according  as  they  have  relation  or  not 
with  facts  and  acts  which,  collectively,  make  up  the  use  of 
the  neutral  ports  and  waters  as  "the  bases  of  naval  opera 
tions"  by  belligerents.  Accordingly,  the  argument  of  the  em 
inent  Counsel  does  not  stop  with  so  easy  a  disposition  of  the 
subject  of  coaling,  but  proceeds  to  discuss  the  whole  question 
of  base  of  operations, — what  it  means,  what  it  does  not 
mean,  the  inconvenience  of  a  loose  extension  of  its  meaning, 
— the  habit  of  the  United  States  in  dealing  with  the  question 
both  in  acts  of  Government  and  the  practice  of  its  cruisers, — 
the  understanding  of  other  nations,  giving  the  instances 
arising  on  the  correspondence  with  Brazil  on  the  subject  of 
the  "Sumter";  and  produces  as  a  result  of  this  inquiry  the 


616         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

conclusion,  that  it  was  not  the  intention  of  the  second  rule 
of  the  treaty  to  limit  the  right  of  asylum. 

In  regard  to  the  special  treatment  of  this  subject  of  coal 
ing  provided  by  the  regulations  established  by  the  British 
Government  in  1862,  it  is  urged  that  they  were  voluntary 
regulations,  that  the  essence  of  them  was  that  they  should 
be  fairly  administered  between  the  parties,  and  that  the 
rights  of  asylum  or  hospitality  in  this  regard  should  not  be 
exceeded.  Now,  this  brings  up  the  whole  question  of  the  use 
of  neutral  ports  or  waters  as  a  "base  of  naval  operations" 
which  is  proscribed  by  the  second  rule  of  the  treaty. 

You  will  observe  that  while  the  first  rule  applies  itself 
wholly  to  the  particular  subject  of  the  illegal  outfit  of  a  vessel 
which  the  neutral  had  reasonable  ground  to  believe  was  to 
be  employed  to  cruise,  etc.,  or  to  the  detention  in  port  of  a 
vessel  that  was  in  whole  or  in  part  adapted  for  war — while 
the  injunction  and  duty  of  the  first  rule  are  thus  limited, 
and  the  violation  of  it,  and  the  responsibility  consequent 
upon  such  violation,  are  restricted  to  those  narrow  subjects, 
the  proscription  of  the  second  rule  is  as  extensive  as  the 
general  subject,  under  the  law  of  nations,  of  the  use  of  ports 
and  waters  of  the  neutral  as  the  basis  of  naval  operations, 
or  for  the  renewal  or  augmentation  of  military  supplies,  or 
the  recruitment  of  men. 

What,  then,  is  the  doctrine  of  hospitality  or  asylum,  and 
what  is  the  doctrine  which  prohibits  the  use  (under  cover  of 
asylum,  under  cover  of  hospitality,  or  otherwise)  of  neutral 
ports  and  waters  as  bases  of  naval  operations?  It  all  rests 
upon  the  principle  that,  while  a  certain  degree  of  protection 
or  refuge,  and  a  certain  peaceful  and  innocent  aid,  under  the 
stress  to  which  maritime  voyages  are  exposed,  are  not  to  be 
denied,  and  are  not  to  be  impeached  as  unlawful,  yet  any 
thing  that  under  its  circumstances  and  in  its  character  is  the 
use  of  a  port  or  of  waters  for  naval  operations,  is  proscribed, 
although  it  may  take  the  guise,  much  more  if  it  be  an  abuse, 
of  the  privilege  of  asylum  or  hospitality. 


THE  ALABAMA  CLAIMS  617 

There  is  no  difference  in  principle,  in  morality,  or  in  duty, 
between  neutrality  on  land  and  neutrality  at  sea.  What, 
then,  are  the  familiar  rules  of  neutrality  within  the  territory 
of  a  neutral,  in  respect  to  land  warfare? 

Whenever  stress  of  the  enemy,  or  misfortune,  or  cowardice, 
or  seeking  an  advantage  of  refreshment,  carries  or  drives 
one  of  the  belligerents  or  any  part  of  his  forces  over  the  fron 
tier  into  the  neutral  territory,  what  is  the  duty  of  the  neutral? 
It  is  to  disarm  the  forces  and  send  them  into  the  interior  till 
the  war  is  over.  There  is  to  be  no  practicing  with  this  ques 
tion  of  neutral  territory.  The  refugees  are  not  compelled 
by  the  neutral  to  face  their  enemy;  they  are  not  delivered 
up  as  prisoners  of  war;  they  are  not  surrendered  to  the 
immediate  stress  of  war  from  which  they  sought  refuge. 
But  from  the  moment  that  they  come  within  neutral  ter 
ritory  they  are  to  become  non-combatants,  and  they  are  to 
end  their  relations  to  the  war.  There  are  familiar  examples 
of  this  in  the  recent  history  of  Europe. 

What  is  the  doctrine  of  the  law  of  nations  in  regard  to 
asylum,  or  refuge,  or  hospitality,  in  reference  to  belligerents 
at  sea  during  war?  The  words  themselves  sufficiently 
indicate  it.  The  French  equivalent  of  reldche  forcee  equally 
describes  the  only  situation  in  which  a  neutral  recognizes 
the  right  of  asylum  and  refuge ;  not  in  the  sense  of  shipwreck, 
I  agree,  but  in  the  sense  in  which  the  circumstances  of 
ordinary  navigable  capacity  to  keep  the  seas,  for  the  purposes 
of  the  voyage  and  the  maintenance  of  the  cruise,  render  the 
resort  of  vessels  to  a  port  or  ports  suitable  to,  and  convenient 
for,  their  navigation,  under  actual  and  bona  fide  circum 
stances  requiring  refuge  and  asylum. 

There  is  another  topic  which  needs  to  be  adverted  to 
before  I  apply  the  argument.  I  mean  the  distinction 
between  commercial  dealing  in  the  uncombined  materials  of 
war,  and  the  contribution  of  such  uncombined  materials  of 
war,  in  the  service  of  a  belligerent,  in  making  up  military 


618         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

and  naval  operations,  by  the  use  of  neutral  territory  as  the 
base  of  those  contributions.  What  are  really  commercial 
transactions  in  contraband  of  war,  are  allowed  by  the  prac 
tice  of  the  United  States  and  of  England  equally,  and  are 
not  understood  to  be  proscribed,  as  hostile  acts,  by  the  law  of 
nations,  and  it  is  agreed  between  the  two  countries  that  the 
second  rule  is  not  to  be  extended  to  embrace,  by  any  large 
ness  of  construction,  mere  commercial  transactions  in  con 
traband  of  war. 

SIR  ALEXANDER  COCKBURN:  Then  I  understand  you  to 
concede  that  the  private  subject  may  deal  commercially 
in  what  is  contraband  of  war? 

MR.  EVARTS:  I  will  even  go  further  than  that  and  say 
that  commercial  dealings  or  transactions  are  not  proscribed 
by  the  law  of  nations,  as  violations  of  neutral  territory, 
because  they  are  in  contraband  of  war.  Therefore  I  do  not 
need  to  seek  any  aid,  in  my  present  purpose,  of  exhibiting 
the  transactions  under  the  second  rule  by  these  cruisers,  as 
using  Great  Britain  as  the  base  for  these  naval  operations, 
from  any  construction  of  that  rule  which  would  proscribe 
a  mere  commercial  dealing  in  what  is  understood  to  be  con 
traband  of  war.  Such  is  not  the  true  sense  of  the  article, 
nor  does  the  law  of  nations  proscribe  this  commercial  deal 
ing  as  a  hostile  act.  But  whenever  the  neutral  ports,  places 
and  markets,  are  really  used  as  the  bases  of  naval  operations, 
when  the  circumstances  show  that  resort  and  that  relation 
and  that  direct  and  efficient  contribution  and  that  com 
plicity,  and  that  origin  and  authorship,  which  exhibit  the 
belligerent  himself,  drawing  military  supplies  for  the  purpose 
of  his  naval  operations  from  neutral  ports,  that  is  a  use  by  a 
belligerent  of  neutral  ports  and  waters  as  a  base  of  his  naval 
operations,  and  is  prohibited  by  the  second  rule  of  the  treaty. 
Undoubtedly  the  inculpation  of  a  neutral  for  permitting  this 
use,  turns  upon  the  question  whether  due  diligence  has  been 
used  to  prevent  it. 


THE  ALABAMA  CLAIMS 

The  argument  upon  the  other  side  is,  that  the  meaning  of 
"the  base  of  operations,"  as  it  has  been  understood  in 
authorities  relied  upon  by  both  nations,  does  not  permit  the 
resort  to  such  neutral  ports  and  waters  for  the  purpose  of 
specific  hostile  acts,  but  proceeds  no  further.  The  illustra 
tive  instances  given  by  Lord  Stowell,  or  by  Chancellor 
Kent,  in  support  of  the  rule  are  adduced  as  being  the  measure 
of  the  rule.  These  examples  are  of  this  nature:  A  vessel 
cannot  make  an  ambush  for  itself  in  neutral  waters,  cannot 
lie  at  the  mouth  of  a  neutral  river  to  sally  out  to  seize  its 
prey;  cannot  lie  within  neutral  waters  and  send  its  boats  to 
make  captures  outside  their  limits.  All  these  things  are 
proscribed.  But  they  are  given  as  instances,  not  of  flagrant, 
but  of  incidental  and  limited  use.  They  are  the  cases  that 
the  commentators  cite  to  show  that  even  casual,  temporary 
and  limited  experiments  of  this  kind  are  not  allowed,  and 
that  they  are  followed  by  all  the  definite  consequences  of  an 
offence  to  neutrality  and  of  displeasure  to  a  neutral,  to  wit, 
the  resort  by  such  neutral  power  to  the  necessary  methods 
to  punish  and  redress  these  violations  of  neutral  territory. 

Now,  let  us  see  how  we  may,  by  examples,  contrast  the 
asylum  or  hospitality  in  matter  of  coal  or  similar  contribu 
tions  in  aid  of  navigable  capacity,  with  the  use  of  neutral 
ports  as  a  base  of  naval  operations. 

I  will  not  trespass  upon  a  discussion  of  questions  of  fact. 
The  facts  are  wholly  within  your  judgment  and  are  not 
embraced  in  the  present  argument.  But  take  the  coaling 
of  the  "Nashville."  The  "Nashville"  left  Charleston 
under  circumstances  not  in  dispute,  and  I  am  not  now  con 
sidering  whether  Great  Britain  is  or  is  not  responsible  in 
reference  to  that  ship  in  any  other  matter  than  that  of  coal 
ing,  which  I  will  immediately  introduce  to  your  attention. 

The  "Nashville"  having  a  project  of  a  voyage  from 
Charleston,  her  home  port,  to  Great  Britain,  in  the  course 
of  which  she  proposed  to  make  such  captures  as  might  be, 


SMECHES  OF  WILLIAM  MAXWELL  EVA&TS 

intended  originally  to  carry  out  Mason  and  Slidell,  but 
abandoned  this  last  intention  before  sailing,  as  exposing 
these  Commissioners  to  unfavorable  hazard  from  the  block 
ading  squadron.  This  was  the  project  of  her  voyage,  those 
the  naval  operations  which  she  proposed  to  herself.  How 
did  she  prepare  within  her  own  territory,  to  execute  that 
project  of  naval  warfare?  She  relied  substanially  upon 
steam,  and  in  order  to  be  sure  of  going  over  the  bar,  under 
circumstances  which  might  give  the  best  chance  of  eluding 
the  vigilance  of  the  blockaders,  she  took  only  two  days 
supply  of  coal,  which  would  carry  her  to  Bermuda.  The 
coal  was  exhausted  when  she  got  there:  she  there  took  in 
six  hundred  tons. 

SIR  ALEXANDER  COCKBURN:  I  believe,  Mr.  Evarts,  that 
the  figure  six  afterwards  came  down  to  five. 

MR.  EVARTS:  For  the  purpose  of  my  present  argument, 
it  is  quite  immaterial. 

MR.  WAITE:  It  was  subsequently  proved  to  be  four  hun 
dred  and  fifty  tons. 

MR  EVARTS:  Very  well.  She  had  no  coal  and  she  took 
four  hundred  and  fifty  tons  or  more  on  board  to  execute  the 
naval  operation  which  she  projected  when  she  left  Charles 
ton  and  did  not  take  the  means  to  accomplish,  but  relied 
upon  getting  them  in  a  neutral  port  to  enable  her  to  pursue 
her  cruise.  Now,  the  doctrine  of  reldche  forcSe,  or  of  refuge, 
or  of  asylum,  or  of  hospitality,  has  nothing  to  do  with  a 
transaction  of  that  kind.  The  vessel  comes  out  of  a  port  of 
safety,  at  home,  with  a  supply  from  the  resources  of  the 
belligerent  that  will  only  carry  it  to  a  neutral  port,  to  take 
in  there  the  means  of  accomplishing  its  projected  naval 
operations.  And  no  system  of  relief  in  distress,  or  of  allow 
ing  supply  of  the  means  of  taking  the  seas  for  a  voyage 
interrupted  by  the  exhaustion  of  the  resources  originally 
provided,  have  anything  to  do  with  a  case  of  this  kind.  It 
was  a  deliberate  plan,  when  the  naval  operation  was  medi- 


THE  ALABAMA  CLAIMS  621 

tated  and  concluded  upon,  to  use  the  neutral  port  as  a  base  of 
naval  operations,  which  plan  was  carried  out  by  the  actual 
use  of  neutral  territory  as  proposed. 

Now  we  say,  that  if  this  Tribunal,  upon  the  facts  of  that 
case,  shall  find  that  this  neutral  port  of  Bermuda  was  planned 
and  used  as  the  base  of  the  naval  operations,  projected  at 
the  start  of  the  vessel  from  Charleston,  that  that  is  the  use  of 
a  neutral  port  as  a  base  for  naval  operations.  On  what 
principle  is  it  not?  Is  it  true  that  the  distance  of  the  pro 
jected  naval  operation,  or  its  continuance,  makes  a  difference 
in  principle,  as  to  the  resort  to  establish  a  base  in  neutral 
territory  or  to  obtain  supplies  from  such  a  base?  Why, 
certainly  not.  Why,  that  would  be  to  proscribe  the  slight 
and  comparatively  harmless  abuses  of  neutral  territory,  and 
to  permit  the  bold,  impudent  and  permanent  application  of 
neutral  territory  to  belligerent  operations.  I  will  not  delay 
any  further  upon  this  illustration. 

Let  us  take  next  the  case  of  the  "Shenandoah,"  separating 
it  from  any  inquiries  as  to  culpable  escape  or  evasion  from  the 
original  port  of  Liverpool.  The  project  of  the  "Shenan- 
doah's"  voyage  is  known.  It  was  formed  within  the  Con 
federate  territory.  It  was  that  the  vessel  should  be  armed 
and  supplied — that  she  should  make  a  circuit,  passing  round 
Cape  Horn  or  the  Cape  of  Good  Hope — that  she  should  put 
herself,  on  reaching  the  proper  longitude,  in  a  position  to 
pursue  her  cruise  to  the  Arctic  Ocean,  there  to  make  a  prey 
of  the  whaling  fleet  of  the  United  States.  To  break  up 
these  whaling  operations  and  destroy  the  fleet,  was  planned 
under  motives  and  for  advantages  which  seemed  to  that 
belligerent  to  justify  the  expense,  and  risk,  and  perils  of  the 
undertaking.  That  is  the  naval  operation,  and  all  that  was 
done  inside  the  belligerent  territory,  was  to  form  the  project 
of  the  naval  operation  and  to  communicate  authority  to 
execute  it  to  the  officers  who  were  outside  of  that  territory. 

Now,  either  the  "Shenandoah,"  if  she  was  to  be  obtained, 


622         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

prepared,  armed,  furnished,  and  coaled  for  that  extensive 
naval  operation,  was  to  have  no  base  for  it  at  all,  or  it  was 
to  find  a  base  for  it  in  neutral  ports.  It  is  not  a  phantom 
ship,  and  it  must  have  a  base.  Accordingly,  as  matter  of 
fact,  all  that  went  to  make  up  the  execution  of  that  operation 
of  maritime  war,  was  derived  from  the  neutral  ports  of 
Great  Britain.  The  ship  was  thence  delivered  and  sallied 
forth— 

SIR  ALEXANDER  COCKBURN:  But  that  was  not  known 
to  the  Government. 

MR.  EVARTS:  I  am  now  only  showing  that  this  occurred 
as  matter  of  fact.  The  question  whether  it  was  known  to, 
or  permitted  by,  the  Government  of  Great  Britain,  as  the 
Chief  Justice  suggests,  is  of  an  entirely  different  aspect, 
involving  the  considerations  of  due  diligence  to  prevent. 

The  ship,  then,  was  furnished  from  neutral  ports  and 
waters.  It  resorted  to  Madeira  to  await  the  arrival  of  the 
"Laurel,"  which,  by  concert  and  employment  in  advance  of 
the  sailing  of  the  "Shenandoah,"  was  to  take  the  armament, 
munitions  of  war,  officers  and  a  part  of  the  crew  to  complete 
the  "  Shenandoah's"  fitness  to  take  the  seas  as  a  ship  of  war 
to  execute  the  naval  project  on  which  she  originally  sailed, 
and  which  were  transferred  from  ship  to  ship  at  sea.  The 
island  of  Madeira  served  only  as  rendezvous  for  the  two  ves 
sels  and  if  there  had  been  occasion,  as  in  fact  there  was  not, 
might  have  furnished  shelter  from  storms.  Thus  made  a 
fighting  ship  from  these  neutral  ports,  as  a  base,  and  fur 
nished  from  the  same  base  with  the  complete  material  for  the 
naval  operation  projected,  the  "Shenandoah"  made  cap 
tures,  as  without  interruption  of  her  main  project  she  might, 
rounded  the  Cape  of  Good  Hope  and  came  to  Melbourne, 
another  British  port,  whence  she  was  to  take  her  last  de 
parture  for  her  distant  field  of  operations,  the  waters  of  the 
whaling  fleet  of  the  United  States  in  the  Arctic  Ocean. 

SIR  ROUND  ELL  PALMER:  I  did  not,  Mr.  Evarts,  enter 
upon  a  treatment  of  each  of  the  vessels. 


THE  ALABAMA  CLAIMS  623 

MR.  EVARTS:  I  am  only  showing  that  this  ship  did  use 
your  ports  for  the  purposes  of  its  operations. 

SIR  ROUNDELL  PALMER:  But,  Mr.  Evarts,  I  only  men 
tioned  these  vessels. 

MR.  EVARTS:  You  discussed  the  question  of  base  of 
naval  operations. 

There  she  obtained  as  matter  of  fact  four  hundred  and 
fifty  tons  of  coal,  or  something  of  that  kind,  and  forty  men, 
and  without  both  of  these,  as  well  as  important  repairs  of 
her  machinery,  she  could  hot  have  carried  out  the  naval  pro 
ject  oh  which  she  had  started.  The  coal  taken  at  Mel 
bourne  was  sent  by  appointment  from  Liverpool,  and  was 
there  to  complete  her  refitment.  The  naval  operation  would 
have  failed  if  the  vessel  had  not  received  the  replenishment 
of  power  and  resources  at  Melbourne  as  a  base.  Now,  this 
"Shenandoah"  was  able  to  sail  sixteen  knots  an  hour. 

SIR  ALEXANDER  COCKBURN:  Do  you  mean  to  say  six 
teen  knots  an  hour?  That  is  faster  than  any  vessel  I  have 
ever  heard  of. 

MR.  EVARTS:  Well,  we  will  not  dispute  about  the  facts. 
There  is  no  doubt,  however,  that  it  is  so, — she  sailed  on 
one  occasion  over  three  hundred  and  twenty  miles  in  twenty- 
four  hours. 

LORD  TENTERDEN:  But  that  is  not  sixteen  knots  an  hour. 

MR.  EVARTS:  I  have  not  said  that  she  had  sailed  twenty- 
four  consecutive  hours  at  the  rate  of  sixteen  knots.  But  she 
could  sail  sixteen  knots  an  hour,  and  she  could  only  steam 
ten  knots  an  hour.  I  have  not  invented  this.  Her  remark 
able  qualities  are  stated  in  the  proofs.  Her  steam  power 
was  not  necessary  to  her  navigation  or  her  speed,  however, 
except  to  provide  against  calms,  and  give  assurance  of  con 
stancy  of  progress  in  adverse  weather.  Her  great  advan 
tage,  however,  was  in  being  one  of  the  fastest  sailing  ships 
ever  built.  The  great  importance  of  her  having  abundance 
of  coal  at  the  contemplated  scene  of  her  naval  operations 


624         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

was,  that  she  might  capture  these  poor  whalers,  who  under 
stood  those  perilous  seas,  and  if  they  could  only  get  up  steer 
age  way,  would  be  able  to  elude  her. 

SIR  ALEXANDER  COCKBURN:  What!  if  she  sailed  six 
teen  knots  an  hour! 

MR.  EVARTS:  If  the  Chief  Justice  will  mark  the  circum 
stances  of  Arctic  navigation,  he  will  understand  that  by 
means  of  their  knowledge  of  the  ice,  and  the  region  gener 
ally,  they  could  seek  shelter  by  interposing  barriers  between 
themselves  and  their  pursuer.  They  did,  however,  become 
her  prey;  but  it  was  only  when  she  found  them  becalmed. 
Now,  this  case  of  the  "Shenandoah"  illustrates,  by  its  career, 
on  a  large  scale,  the  project  of  a  belligerent  in  maritime  war, 
which  sets  forth  a  vessel  and  furnishes  it  complete  for  war, 
plans  its  naval  operations  and  executes  them,  and  all  this 
from  neutral  ports  and  waters,  as  the  only  base,  and  as  a  suffi 
cient  base.  Melbourne  was  the  only  port  from  which  the 
"Shenandoah"  received  anything  after  its  first  supply  from 
the  home  ports  of  Great  Britain,  and  it  finally  accomplished 
the  main  operation  of  its  naval  warfare  by  means  of  the  coal 
ing,  and  other  refitment  at  Melbourne.  Whether  it  could 
rely  for  the  origin  of  its  naval  power,  and  for  the  means  of  ac 
complishing  its  naval  warfare,  upon  the  use  of  neutral  ports 
and  waters,  under  the  cover  of  commercial  dealings  in  contra 
band  of  war,  and  under  the  cover  of  the  privilege  of  asy 
lum,  was  the  question  which  it  proposed  to  itself  and  which 
it  answered  for  itself.  It  is  under  the  application  of  these 
principles  that  the  case  of  the  "Shenandoah"  is  supposed  to 
be  protected  from  being  a  violation  of  the  law  of  nations, 
which  prohibits  the  use  of  ports  and  waters  of  a  neutral  as  a 
base  of  naval  operations.  I  do  not  propose  to  argue  upon 
the  facts  of  the  case  of  the  "Shenandoah,"  but  only  to  sub 
mit  the  principles  on  which  they  are  to  be  considered. 

SIR  ALEXANDER  COCKBURN:  I  would  like  to  ask  you, 
Mr.  Evarts,  whether  your  proposition  involves  this:  that 


THE  ALABAMA  CLAIMS  625 

every  time  a  belligerent  steam- vessel  puts  into  a  neutral  port 
for  the  purpose  of  getting  coal,  and  then  goes  forward  upon 
her  further  object  of  war,  that  there  is  a  violation  of  neutral 
territory.  I  just  want  to  draw  your  attention  to  this  point. 
What  I  want  to  understand  is,  what  difference  there  is  be 
tween  the  ships  of  one  nation  and  the  ships  of  another  na 
tion,  as  regards  this  matter  of  coal.  Would  the  principle 
of  your  argument  apply  to  the  vessels  of  other  belligerents? 

MR.  EVARTS:  Of  course,  it  is  to  be  applied  to  all  bellig 
erents,  and  when  the  case  arises  for  complaint  it  is  to  be 
judged  in  view  of  all  the  facts  and  circumstances,  whether  it 
falls  within  the  license  of  hospitality,  or  whether  it  is  a  re 
sort  as  to  a  base  of  operations,  that  is  to  say,  whether  the 
whole  transaction,  in  all  its  features  amounts  to  a  concerted 
and  planned  use. 

SIR  ALEXANDER  COCKBURN:   Planned  by  whom? 

MR.  EVARTS:  Why,  planned  by  the  belligerent. 

SIR  ALEXANDER  COCKBURN:  A  ship  goes  into  a  neutral 
port  without  intimating  its  purpose  or  disclosing  whether  it 
belongs  to  one  belligerent  or  another. 

MR.  EVARTS:  Take  the  case  of  the  "Nashville." 

LORD  TENTERDEN:  Take  the  "Vanderbilt." 

SIR  ALEXANDER  COCKBURN:  Well,  let  us  take  that  case. 
She  goes  into  a  neutral  port  and  wants  coal  for  the  purpose 
of  going  forth  again  on  her  mission  of  war.  No  question 
is  asked.  The  ship,  I  grant  you,  comes  with  the  object  of 
getting  coal  for  the  purpose  of  going  out  on  her  errand  of 
war,  and,  in  one  sense,  uses  neutral  territory  as  a  base. 
But  the  neutral  knows  nothing  about  the  course  of  the  ves 
sel,  or  its  destination,  except  he  takes  it  for  granted  it  is  a 
ship  of  war.  How  can  he  be  said  to  allow  the  territory  to  be 
made  a  base  of  operations,  except  so  far  as  it  applies  to  the 
ships  of  a  belligerent? 

MR.  EVARTS:  It  does  apply;  but  I  have  not  said  that  this 
alone  rendered  the  neutral  responsible.  I  have  merely  laid 

42 


626         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

down  the  facts.  The  magnitude  of  the  operations  and  the 
completeness  of  their  relations  to  the  base  of  supplies,  do  not 
alter  the  application  of  principles.  After  all  there  is  left,  of 
course,  the  question  of  whether  you  have  suffered  or  allowed 
these  things,  or  have  used  due  diligence  to  prevent  them,  and 
upon  the  discussion  of  that  subject  I  shall  not  trespass. 

SIR  ALEXANDER  COCKBURN:  But  that  is  the  very  ques 
tion. 

MR.  EVARTS:  But  that  question  could  not  arise  until  it 
was  determined  whether  the  belligerent  had,  as  matter  of 
fact,  made  the  neutral  port  a  base  of  operations.  All  that 
I  have  said  has  been  intended  to  show  that  what  was  done 
by  these  cruisers  did  make  the  neutral  ports  a  base,  just  as 
much  as  if  a  shallop  was  stationed  at  the  mouth  of  a  neutral 
river,  and  sent  out  a  boat  to  commit  hostilities:  In  either 
case,  the  neutral  is  not  responsible,  unless  it  has  failed  to 
exercise  due  diligence.  But  there  is  this  further  conse 
quence  carrying  responsibility,  that  when  the  neutral  does 
not  know  of  such  an  act  until  after  it  has  been  committed, 
it  is  its  duty  to  resent  it  and  to  prevent  its  repetition,  and  to 
deny  hospitality  to  the  vessels  that  have  consummated  it. 
Now,  these  questions  can  certainly  be  kept  distinct.  If  the 
fact  is  not  known,  and  if  there  is  no  want  of  due  diligence, 
then  the  neutral  is  not  in  fault.  If  the  facts  are  afterwards 
known,  then  the  cruiser  that  has  committed  the  violation  of 
neutrality  is  to  be  proscribed,  to  be  denied  hospitality,  to  be 
detained  in  port,  or  excluded  from  port,  after  notice,  or 
without  notice,  as  the  case  may  be. 

The  question  then  arises  whether  a  nation,  thus  dealt  with 
by  a  belligerent,  and  having  the  power  to  stop  the  course  of 
naval  operations  thus  based,  if  it  purposely  omits  so  to  do, 
does  not  make  itself  responsible  for  their  continuance.  I 
do  not  desire  to  be  drawn  into  a  discussion  upon  the  facts 
which  is  not  included  in  the  range  of  the  present  argument. 
I,  now,  am  simply  endeavouring  to  show  that  the  illustra- 


THE  ALABAMA  CLAIMS  627 

tions  of  Kent  and  Stowell  taken  from  navigation,  and  mari 
time  war,  then  prevailing,  do  not  furnish  the  rule  or  the 
limit  of  the  responsibility  of  neutrals  in  respect  of  allowing 
such  use  of  naval  bases,  nor  of  the  circumstances  which  make 
up  the  prohibited  uses  of  neutral  ports  for  such  bases. 

I  proceed  to  another  branch  of  the  subject.* 

It  is  said  that  the  concerted  setting  forth  of  the  "Laurel" 
from  the  neutral  port,  to  carry  the  armament  and  the  muni 
tions  of  war  and  the  officers  and  the  crew  to  be  combined  out 
side  the  neutral  jurisdiction  with  the  "  Shenandoah,"  al 
ready  issued  from  another  port  of  the  same  neutral,  is  only  a 
dealing  in  contraband  of  war.  I  deny  that  such  a  transaction 
has  any  connection  with  dealing  in  contraband  of  war.  It 
is  a  direct  obtaining  by  a  projected  cruiser  of  its  supply 
of  armament,  munitions  and  men  and  officers  from  a  neutral 
port. 

There  may  be  no  fault  on  the  part  of  the  neutral  in  not 
preventing  it.  That  will  depend  on  the  question  of  "due 
diligence  to  prevent,"  "reasonable  ground  to  believe,"  etc. 
But  the  principle  of  contraband  of  war  does  not  protect  such 
a  transaction,  and  that  is  the  only  principle  that  has  been  ap 
pealed  to  by  the  British  Government,  in  the  discussions  of 
this  matter  to  justify  it.  The  facts  of  this  vessel  going  out 
were  known, — 

SIR  ALEXANDER  COCKBURN:  Not  until  afterwards. 

MR.  EVARTS:  The  law  of  nations  was  violated,  your  ter 
ritory  had  been  used,  as  matter  of  fact,  we  claim,  as  the  base 

*  In  connection  with  this  discussion,  I  ask  attention  to  the  course  taken  by  the 
Government  of  Brazil  in  resentment  and  punishment  for  the  incidental  violation 
of  its  neutrality  by  the  "Florida"  (within  the  neutral  waters)  and  by  the  "Shenan 
doah,"  by  her  commander  violating  the  Consular  seal  of  Brazil  on  board  one  of  the 
"Shenandoah's"  prizes.  In  both  instances,  the  offending  cruisers  were  perpetually 
excluded  from  the  ports  of  the  empire;  and  the  exclusion  embraced  any  other 
cruiser  that  should  be  commanded  by  the  captain  of  the  "Shenandoah." 

The  treatment  of  the  "Rappahannock"  by  the  French  Government,  which 
detained  her  in  port  till  the  close  of  the  war,  is  well  worthy  of  attention.  The 
transaction  is  detailed  in  the  App.  Am,  Cpunter-Case,  pp.  917-946. 


628         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

of  naval  operations,  and  it  was  not  a  dealing  in  contraband  of 
war.  It  was  not  a  commercial  transaction.  It  was  a  direct 
furnishing  of  a  cruiser  with  armament  from  your  port. 
It  might  as  well  have  been  accomplished  within  three  miles 
of  your  coast.  Yet,  it  is  said  this  is  no  offence  against  your 
law. 

SIR  ALEXANDER  COCKBURN:  I  do  not  say  that. 

MR.  EVARTS:  Unfortunately  for  the  United  States, 
through  the  whole  war,  we  had  quite  other  doctrine  from 
those  who  laid  down  the  law  for  Great  Britain  in  these  mat 
ters.  Fortunately,  we  have  better  doctrine  here  and  now. 
But  according  to  the  law  as  administered  in  England  such 
combinations  of  the  materials  of  naval  war  could  be  made 
outside  of  her  ports,  by  the  direct  action  of  the  belligerent 
Government,  deriving  all  the  materials  from  her  ports  and 
planning  thus  to  combine  them  outside. 

SIR  ALEXANDER  COCKBURN:    If  that  had  been  shown. 

MR.  EVARTS:  The  proofs  do  show  it,  and  that  the  doc 
trine  was,  that  it  was  lawful  and  should  not  be  interfered 
with. 

I  disclaim  any  desire  or  purpose  of  arguing  upon  the  facts 
of  particular  vessels.  I  am  merely  laying  down  principles 
applicable  to  supposed  facts.  If  the  principles  were  con 
ceded,  I  would  have  no  occasion  to  deal  with  questions  of 
fact  at  all. 

The  learned  Chief  Justice  has,  very  satisfactorily,  cer 
tainly,  to  us,  presently  expressed  certain  legal  opinions  on 
this  subject;  but  I  must  say  that  they  were  not  entertained 
by  the  Government  of  Great  Britain,  and  did  not  control  its 
action. 

I  think  that  the  proofs  before  the  Tribunal  can  be  easily 
referred  to,  to  confirm  the  position  I  have  taken,  as  to  the 
legal  doctrine  held  in  England  in  reference  to  this  subject  of 
the  base  of  operations.  In  contradiction  of  that  doctrine, 
we  now  insist,  as  our  GQyerjiment  all  through  the  war  in- 


THE  ALABAMA  CLAIMS  629 

sisted,  this  is  not  dealing  in  contraband  of  war;  it  is  using 
neutral  territory  as  a  base  of  operations.  Whether  there 
was,  or  should  be,  no  responsibility  for  it,  because  it  was  not 
known  or  could  not  be  prevented,  is  an  entirely  different 
question.  But  I  undertake  to  say  as  matter  of  fact,  that  the 
doctrine  of  the  English  law,  during  all  those  proceedings, 
was,  that  such  projects  and  their  execution  as  a  contributory 
concurrence  with  the  outfit  of  the  principal  cruisers  for  naval 
operations  (such  cases  as  those  of  the  "Laurel,"  the  "Alar," 
the  "Agrippina,"  the  "Bahama"  and  similar  vessels)  were 
lawful  and  could  not  and  should  not  be  prevented. 

SIR  ALEXANDER  COCKBURN:  I  would  be  very  much 
obliged  if  you  will  refer  me  to  some  authority  for  that. 

MR.  EVARTS:  I  will.  One  of  the  arbitrators  (Mr. 
Adams)  from  his  knowledge  of  the  course  of  the  corres 
pondence,  knows  that  I  do  not  deceive  myself  in  that  respect. 
It  is  this  contributory  furnishing  of  armament,  and  muni 
tions,  and  men,  which  rendered  the  principal  cruisers  effi 
cient  instruments  of  all  the  mischief,  and  without  which  their 
evasions  from  port  were  of  little  consequence,  and,  without 
the  expectation  of  which,  they  never  would  have  been 
planned. 

I  now  refer  to  a  paper  that  will  show  that  I  have  been  right 
in  my  proposition  as  to  the  construction  of  English  law  as 
held  during  the  occurrence  of  these  transactions. 

In  Vol.  Ill  of  American  Appendix  (p.  53),  in  a  report  to 
the  Board  of  Trade  by  the  Commissioners  of  Customs,  oc 
curs  this  passage: 

CUSTOM  HOUSE,   September  25,   1862. 

Your  lordships  having,  by  Mr.  Arbuthnot's  letter  of  the  16th 
instant,  transmitted  to  us,  with  reference  to  Mr.  Hamilton's 
letter  of  the  2d  ultimo,  the  enclosed  communication  from  the 
Foreign  Office,  with  copies  of  a  further  letter  and  its  enclosures 
from  the  United  States  Minister  at  this  Court,  respecting  the  sup 
ply  of  cannon  and  munitions  of  war  to  the  gunboat  No.  290, 


630         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

recently  built  at  Liverpool,  and  now  in  the  service  of  the  so-called 
Confederate  States  of  America;  and  your  lordships  having  desired 
that  we  would  take  such  steps  as  might  seem  to  be  required  in  view 
of  the  facts  therein  represented,  and  report  the  result  to  your  lord 
ships,  we  have  now  to  report : 

That,  assuming  the  statement  set  forth  in  the  affidavit  of  Red- 
din  (who  sailed  from  Liverpool  in  the  vessel)  which  accompanied 
Mr.  Adams's  letter  to  Earl  Russell,  to  be  correct,  the  furnishing  of 
arms,  etc.,  to  the  gun-boat  does  not  appear  to  have  taken  place 
in  any  part  of  the  United  Kingdom  or  of  her  Majesty's  dominions, 
but  in  or  near  Angra  Bay,  part  of  the  Azores,  part  of  the  Portuguese 
dominions.  No  offence,  therefore,  cognizable  by  the  laws  of  this 
country,  appears  to  have  been  committed  by  the  parties  engaged  in 
the  transaction  alluded  to  in  the  affidavit. 

From  Lord  Russell's  communication  of  this  report  to  the 
American  Minister,  it  will  be  seen  that  the  accepted  opinion 
of  the  Government  was  that  such  operations  could  not  be 
interfered  with,  and  therefore  would  not  be  interfered  with. 
That  may  be  a  correct  view  of  the  Foreign  Enlistment  Act 
of  Great  Britain,  and,  hence,  the  importance  of  reducing  the 
obligations  of  a  neutral  nation  to  prevent  violations  of 
international  law  to  some  settled  meaning. 

This  was  done  by  convention  between  the  High  Contract 
ing  Parties  and  appears  in  the  rules  of  the  treaty.  Under 
these  rules  is  to  be  maintained  the  inculpation  which  we 
bring  against  Great  Britain,  and  which  I  have  now  dis 
cussed  because  the  subject  is  treated  in  the  special  argument 
to  which  I  am  replying.  The  instances  of  neutral  default 
announced  under  the  second  rule,  are  made  penal  by  the 
law  of  nations.  They  are  proscribed  by  the  second  rule. 
They  are  not  protected  as  dealings  in  contraband  of  war. 
They  are  not  protected  under  the  right  of  asylum.  They 
are  uses  of  neutral  ports  and  waters  as  bases  of  naval  opera 
tions,  and  if  not  prohibited  by  the  Foreign  Enlistment  Act, 
and  if  the  British  Executive  Government  could  not  and  would 
not  prevent  them,  and  that  was  the  limit  of  their  duty  under 


THE  ALABAMA  CLAIMS  631 

their  Foreign  Enlistment  Act,  still  we  come  here  for  judg 
ment,  whether  a  nation  is  not  responsible  that  deals  thus  in 
the  contribution  of  military  supplies,  that  suffers  ship  after 
ship  to  go  on  these  errands,  makes  no  effort  to  stop  them,  but, 
on  the  contrary,  announces,  as  the  result  of  the  deliberation 
of  the  law  officers,  to  the  subordinate  officials,  to  the  Min 
ister  of  the  United  States,  to  all  the  world,  that  these  things 
are  not  prohibited  by  the  law  of  Great  Britain,  and  cannot  be 
prohibited  by  the  Executive  Government,  and,  therefore, 
cannot  and  will  not  be  stopped.  That  this  was  the  doctrine 
of  the  English  Government  will  be  seen  from  a  letter  dated 
the  2d  of  April,  1863,  of  Lord  Russell,  found,  in  part,  in 
Vol.  II,  American  Appendix,  page  404;  and,  in  part,  in 
Vol.  I,  ibid.,  page  590: 

But  the  question  really  is,  has  there  been  any  act  done  in  Eng 
land  both  contrary  to  the  obligations  of  neutrality  as  recognized  by 
Great  Britain  and  the  United  States,  and  capable  of  being  made  the 
subject  of  a  criminal  prosecution?  I  can  only  repeat  that,  in  the 
opinion  of  Her  Majesty's  Government,  no  such  act  is  specified  in 
the  papers  which  you  have  submitted  to  me. 

***** 

I,  however,  willingly  assure  you  that,  in  view  of  the  statements 
contained  in  the  intercepted  correspondence,  Her  Majesty's  Gov 
ernment  have  renewed  the  instructions  already  given  to  the  custom 
house  authorities  of  the  several  British  ports  where  ships  of  war  may 
be  constructed,  and  by  the  Secretary  of  State  for  the  Home  De 
partment  to  various  authorities  with  whom  he  is  in  communica 
tion,  to  endeavor  to  discover  and  obtain  legal  evidence  of  any  vio 
lation  of  the  Foreign  Enlistment  Act,  with  a  view  to  the  strict  en 
forcement  of  that  statute  whenever  it  can  really  be  shown  to  be 
infringed. 

***** 

It  seems  clear,  on  the  principle  enunciated  in  these  authorities, 
that,  except  on  the  ground  of  any  proved  violation  of  the  Foreign 
Enlistment  Act,  Her  Majesty's  Government  cannot  interfere  with 
commercial  dealings  between  British  subjects  and  the  so-styled 


632         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

Confederate  States,  whether  the  subject  of  those  dealings  be  money 
or  contraband  goods,  or  even  ships  adapted  for  warlike  purposes. 

These  were  instances  in  which  complaints  were  made  of 
these  transactions,  and  in  which  it  was  answered  that  the 
British  Government  charged  itself  with  no  duty  of  due  dili 
gence,  with  no  duty  of  remonstrance,  with  no  duty  of  pre 
vention  or  denunciation,  but  simply  with  municipal  prose 
cutions  for  crimes  against  the  Foreign  Enlistment  Act. 

What  I  have  said  of  the  "Shenandoah,"  distinguished  her 
from  the  "Florida,"  and  the  "Alabama,"  and  the  "Georgia," 
only  in  the  fact  that,  from  the  beginning  to  the  end  of  the 
"  Shenandoah's"  career,  she  had  no  port  of  any  kind,  and 
had  no  base  of  any  kind,  except  the  ports  of  the  single  nation 
of  Great  Britain.  But  as  to  the  "Florida"  and  the  "Ala 
bama,"  one  (the  "Alabama")  was  supplied  by  a  tug,  or 
steamer,  that  took  out  her  armament  to  Angra  Bay,  the 
place  of  her  first  resort;  the  other  (the  "Florida")  was  sup 
plied  by  a  vessel  sent  out  to  Nassau  to  meet  her,  carrying  all 
her  armament  and  munitions  of  war,  and  which  she  took  out 
in  tow,  transhipping  her  freight  of  war  material  outside  the 
line  of  neutral  waters. 

That  is  called  dealing  in  contraband,  not  proscribed  by  the 
law  of  nations,  not  proscribed  by  any  municipal  law,  and 
not  involving  any  duty  of  Great  Britain  to  intercept,  to  dis 
courage  or  denounce  it.  That  is  confounding  substance  with 
form.  But  let  me  use  the  language  of  an  Attorney-General 
of  England,  employed  in  the  Parliamentary  discussions  which 
attended  the  enactment  of  the  Foreign  Enlistment  Act  of 
1819. 

From  this  debate  in  Parliament,  it  will  be  seen  what  the 
principal  law  adviser  of  the  Crown  then  thought  of  carrying 
on  war  by  commercial  transactions.  He  said : 

Such  an  enactment  was  required  by  every  principle  of  justice; 
for  when  the  State  says,  "We  will  have  nothing  to  do  with  the  war 
waged  between  two  separate  powers,"  and  the  subjects  in  opposi- 


THE  ALABAMA  CLAIMS  633 

tion  to  it  say,  "We  will,  however,  interfere  in  it,"  surely  the  House 
would  see  the  necessity  of  enacting  some  penal  statutes  to  prevent 
them  from  doing  so;  unless,  indeed  it  was  to  be  contended,  that  the 
State  and  the  subjects  who  composed  that  State,  might  take  dis 
tinct  and  opposite  sides  in  the  quarrel.  He  should  now  allude  to 
the  petitions  which  had  that  evening  been  presented  to  the  House 
against  the  bill;  and  here  he  could  not  but  observe,  that  they  had 
either  totally  misunderstood  or  else  totally  misrepresented  its 
intended  object.  They  had  stated  that  it  was  calculated  to  check 
the  commercial  transactions  and  to  injure  the  commercial  interests 
of  this  country.  If  by  the  words  "commercial  interests  and  com 
mercial  transactions"  were  meant  "warlike  adventures,"  he  al 
lowed  that  it  would;  but  if  it  were  intended  to  argue  that  it  would 
diminish  a  fair  and  legal  and  pacific  commerce,  he  must  enter  his 
protest  against  any  such  doctrines.  Now,  he  maintained,  that  as 
war  was  actually  carried  on  against  Spain  by  what  the  petitioners 
called  "commercial  transactions,"  it  was  the  duty  of  the  House  to 
check  and  injure  them  as  speedily  as  possible.  (Note  B,  American 
Argument,  p.  508;  Fr.  tr.  Appendice,  p.  488.) 

War  against  the  United  States,  maritime  war,  was  carried 
on  under  cover  of  what  was  called  right  of  asylum  and  com 
mercial  transactions  in  contraband  of  war.  We  are  now 
under  the  law  of  nations,  by  virtue  of  this  second  rule,  which 
says  that  the  use  of  "ports  and  waters  as  the  base  of  naval 
operations,  or  for  the  purpose  of  the  renewal  or  augmenta 
tion  of  military  supplies  or  arms  or  the  recruitment  of  men" 
shall  not  be  allowed,  and  if  the  facts  of  such  dealing  shall  be 
found,  and  the  proof  of  due  diligence  to  prevent  them  shall 
not  appear  in  the  proofs,  under  that  second  rule  all  four  of 
these  cruisers  must  be  condemned  by  the  Tribunal. 

I  do  not  pass,  nor  venture  to  pass,  in  the  present  argu 
ment,  upon  the  question  whether  there  has  been  in  this  mat 
ter  a  lack  of  due  diligence.  In  the  discussion  of  my  learned 
friend  every  one  of  these  instances  is  regarded  as  a  case  not 
within  the  second  rule,  and  as  a  simple  dealing  in  contra 
band  of  war. 


634         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

SIR  ROUNDELL  PALMER:  I  must  be  permitted  to  say  that 
I  have  not  felt  myself  at  liberty  to  go  into  a  discussion  of 
individual  cases. 

MR.  EVARTS:  The  vessels  are  treated  in  the  argument  of 
the  learned  Counsel. 

SIR  ROUNDELL  PALMER:  There  may  be  passages  in 
reference  to  some  of  the  principal  topics  which  have  been 
mentioned,  but  I  have  avoided  entering  upon  any  elaborate 
consideration  of  each  particular  vessel.  There  is  no  distinct 
enumeration  of  the  vessels. 

MR.  EVARTS:  There  is,  so  distinct  as  this;  it  is  expressly 
stated  that  under  the  law  neither  the  "Georgia,"  nor  the 
"Shenandoah,"  nor  the  subsidiary  vessels  that  carried  their 
armaments  to  the  "Georgia"  and  "Shenandoah,"  and  to  the 
"Florida"  and  "Alabama,"  had,  in  so  doing,  committed  a 
breach  of  neutrality. 

I  am  arguing  now  under  the  second  rule.  I  have  not  felt 
that  I  was  transcending  the  proper  limits  of  this  debate,  be 
cause,  in  answer  to  the  special  argument  of  the  eminent 
Counsel,  I  have  argued  in  this  way.  My  own  view  as  to 
the  extension  of  the  argument  of  the  learned  Counsel  in  his 
discussion  of  what  is  called  "due  diligence,"  as  a  doctrine 
of  the  law  of  nations,  would  not  have  inclined  me  to  expect 
so  large  a  field  of  discussion  as  he  covered.  But,  as  I  have 
admitted  in  my  introductory  remarks,  the  question  of  due 
diligence  connects  itself  with  the  measure  of  duty  and  the 
manner  in  which  it  was  performed,  and  I  felt  no  difficulty  in 
thinking  that  the  line  could  not  be  very  distinctly  drawn. 

I  have  undertaken  to  argue  this  question  under  a  state  of 
facts,  which  shows  that  a  whole  naval  project  is  supplied, 
from  the  first  outfit  of  the  cruiser  to  the  final  end  of  the  cruise, 
by  means  of  this  sort  of  connection  with  neutral  ports  and 
waters  as  a  base  of  naval  operations;  and  I  have  insisted 
that  such  naval  operations  are  not  excluded  from  the  pro 
scription  of  the  second  rule,  by  what  is  claimed  in  the  argu- 


THE  ALABAMA  CLAIMS  635 

ment  of  the  learned  Counsel,  as  the  doctrine  of  contraband 
of  war  and  the  doctrine  of  asylum. 

SECOND  DAY,  AUGUST  6,  1872 

I  was  upon  the  point  of  the  doctrine  of  the  British  Govern 
ment,  and  its  action  under  that  doctrine,  as  bearing  upon 
the  outfit  of  the  contributory  provisions  of  armament, 
munitions,  and  men,  set  forth  in  such  vessels  as  the  "Ba 
hama,"  the  "Alar,"  and  the  "Laurel."  The  correspond 
ence  is  full  of  evidence  that  I  was  correct  in  my  statement 
of  the  doctrine  of  the  British  Government,  and  of  its  action 
from  beginning  to  end  being  controlled  by  that  doctrine; 
and  all  the  remonstrances  of  the  United  States  were  met  by 
the  answer  that  the  law  of  nations,  the  Foreign  Enlistment 
Act,  the  duty  of  neutrality,  had  nothing  whatever  to  do 
with  that  subject,  as  it  was  simply  dealing  in  contraband  of 
war.  The  importance  of  this  view,  of  course,  and  its  im 
mense  influence  in  producing  the  present  controversy 
between  the  two  nations,  are  obvious.  The  whole  mischief 
was  wrought  by  the  co-operating  force  of  the  two  legal 
propositions:  (1)  that  the  unarmed  cruiser  was  not  itself  a 
weapon  of  war,  an  instrument  of  war,  and,  therefore,  was 
not  to  be  intercepted  as  committing  a  violation  of  the  law  of 
nations;  and  (2)  that  the  contributory  provision  by  means 
of  her  supply  ships,  of  her  armament,  munitions,  and  men, 
to  make  her  a  complete  instrument  of  naval  hostilities,  was 
also  not  a  violation  of  the  law  of  nations,  but  simply  a  com 
mercial  dealing  in  contraband.  It  was  only  under  those 
combined  doctrines  that  the  cruiser  ever  came  to  be  in  the 
position  of  an  instrument  of  offensive  and  defensive  war, 
and  to  be  able  to  assume  the  "commission"  prepared  for 
her,  and  which  was  thenceforth  to  protect  her  from  interfer 
ence  on  the  doctrine  of  comity  to  sovereignty. 

So,  too,,  it  will  be  found,  when  we  come  to  consider  the 
observations  of  the  eminent  Counsel  on  the  subject  of  due 


636         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

diligence,  to  which  I  shall  have  occasion  soon  to  reply,  that 
the  question  whether  these  were  hostile  acts,  under  the  law 
of  nations,  was  the  turning  point  in  the  doctrine  of  the 
Government  of  Great  Britain,  and  of  its  action,  as  to  whether 
it  would  intercept  these  enterprises  by  the  exercise  of  execu 
tive  power,  as  a  neutral  government  would  intercept  any 
thing  in  the  nature  of  a  hostile  act  under  the  law  of  nations. 
The  doctrine  was  that  these  were  not  hostile  acts  separately, 
and  that  no  hostile  act  arose  unless  these  separate  contribu 
tions  were  combined  in  the  ports  of  Great  Britain;  that 
there  was  no  footing  otherwise  for  the  obligation  of  the  law 
of  nations  to  establish  itself  upon ;  that  there  was  no  remiss- 
ness  of  duty  on  the  part  of  the  neutral  in  respect  of  them; 
and  finally  that  these  operations  were  not  violations  of  the 
Foreign  Enlistment  Act.  All  this  is  shown  by  the  whole 
correspondence,  and  by  the  decisions  of  the  municipal 
courts  of  England,  in  regard  to  the  only  question  passed 
upon  at  all,  that  of  unarmed  vessels,  so  far  as  they  ever 
passed  even  upon  that  question. 

It  has  seemed  to  be  intimated  by  observations  which  the 
learned  Counsel  has  done  me  the  honor  to  make  during  my 
present  consideration  of  this  topic,  that  my  argument  has 
transcended  the  proper  limit  of  reply  to  the  special  argu 
ment  which  the  eminent  Counsel  himself  has  made  on  the 
same  topic.  A  reference  to  the  text  of  that  argument  will, 
I  think,  set  this  question  at  rest 

In  the  fifteenth  section  of  the  first  chapter  of  his  argu 
ment,  he  does  us  the  honor  to  quote  certain  observations  in 
our  principal  argument  to  which  he  proposes  to  reply.  He 
quotes,  at  page  17  of  his  argument,  as  follows: 

(2)  The  next  great  failure  of  Great  Britain  "to  use  due  dili 
gence  to  prevent"  the  violation  of  its  neutrality,  in  the  matters 
within  the  jurisdiction  of  the  Tribunal,  is  shown  in  its  entire  omis 
sion  to  exert  the  direct  executive  authority,  lodged  in  the  Royal 
Prerogative,  to  intercept  the  preparations  and  outfits  of  the  offend- 


THE  ALABAMA  CLAIMS  637 

ing  vessels,  and  the  contributory  provisions,  of  armament,  muni 
tions  and  men,  which  were  emitted  from  various  ports  of  the 
United  Kingdom.  ;,,.» 

We  do  not  find  in  the  British  case  or  counter-case,  any  serious  con 
tention,  but  that  such  powers  as  pertain  to  the  prerogative,  in  the 
maintenance  of  international  relations,  and  are  exercised  as  such 
by  other  great  powers,  would  have  prevented  the  escape  of  every 
one  of  the  offending  vessels  emitted  from  British  ports,  and  pre 
cluded  the  subsidiary  aids  of  warlike  equipment  and  supplies 
which  set  them  forth,  and  kept  them  on  foot,  for  the  maritime 
hostilities  which  they  maintained. 

The  comment  of  the  learned  Counsel  upon  this  passage  is 
found  on  the  same  page  (17)  of  his  argument,  as  follows: 

With  respect  to  the  second  passage,  it  is  to  be  observed,  that  it 
not  only  imputes  as  a  want  of  due  diligence,  the  abstinence  from 
the  use  of  arbitrary  power  to  supply  a  supposed  deficiency  of  legal 
powers,  but  it  assumes  that  the  United  States  had  a  right,  by  inter 
national  law,  to  request  Great  Britain  to  prevent  the  exportation 
from  her  territory  of  what  it  describes  as  "  contributory  provisions," 
arms,  munitions,  and  "subsidiary  aids  of  warlike  equipment  and 
supplies,"  though  such  elements  of  armament  were  uncombined, 
and  were  not  destined  to  be  combined,  within  British  jurisdiction, 
but  were  exported  from  that  territory  under  the  conditions  of 
ordinary  exports  of  articles  contraband  of  war.  For  such  a  preten- 
tion  no  warrant  can  be  found,  either  in  international  law,  or  in 
any  municipal  law  of  Great  Britain,  or  in  any  one  of  the  three 
rules  contained  in  the  sixth  article  of  the  treaty  of  Washington. 

I  respectfully  submit,  therefore,  that  in  the  observations 
I  have  had  the  honor  to  make  upon  this  subject,  I  can 
hardly  be  said  to  have  exceeded  the  due  limits  of  an  argu 
ment  in  reply.  I  fail  to  find  in  what  the  eminent  Counsel 
here  advances  in  behalf  of  his  Government,  any  answer  to 
my  assertion  that,  during  the  whole  course  of  the  war  (a 
period  when  he,  as  Solicitor  General  or  as  Attorney  General 
pf  England,  was  one  of  the  law  advisers  of  the  Government), 


638         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

the  action  of  Great  Britain  was  governed  by  the  doctrine 
which  I  have  stated.  This  was  publicly  announced  and  it 
was  so  understood  by  the  rebel  agents,  by  the  interests 
involved  in  these  maritime  hostilities,  by  the  United  States 
Minister,  by  the  officials  of  the  British  Government,  by 
everybody  who  had  to  act,  or  ask  for  action,  in  the  premises. 

The  first  instance  arising  was  of  the  vessel  that  carried 
out  the  armament  and  munitions  for  the  "Alabama,"  and 
the  answer  was  as  I  read  from  the  report  of  the  Commission 
ers  of  Customs  to  the  Board  of  Trade.  This  official  paper 
stated  that  the  commissioners  found  nothing  in  that  affair 
that  touched  the  obligations  of  Great  Britain.  This  was 
communicated  to  Mr.  Adams,  and  that,  thenceforth,  was 
the  doctrine  and  action  of  the  Government  of  Great  Britain. 

The  view  of  an  eminent  publicist  on  this  point,  as  a  ques 
tion  of  international  law,  may  be  seen  from  an  extract  found 
at  page  177  of  the  case  of  the  United  States.  M.  Rolin- 
Jacquemyns  says: 

H  nous  semble  que  Tadoption  d'une  pareille  proposition  equivau- 
drait  a  I'inclination  d'un  moyen  facile  d'eluder  la  regie  qui  declare 
incompatible  avec  la  neutralite  d'un  pays  Torganisation,  sur  son 
territoire  d'expeditions  militaires  au  service  d'un  des  belligerants. 
H  suffira,  s'il  s'agit  d'une  entreprise  maritime,  de  faire  partir  en 
deux  ou  trois  fois  les  elements  qui  la  constituent;  d'abord  le 
vaisseau,  puis  les  hommes,  puis  les  armes,  et  si  tous  ces  elements 
ne  se  rejoignent  que  hors  des  eaux  de  la  puissance  neutre  qui 
les  a  laisses  partir,  la  neutralite  sera  intacte.  Nous  pensons  que 
cette  interpretation  de  la  loi  Internationale  n'est  ni  raisonable, 
ni  equitable. 

It  will  be,  then,  for  the  Tribunal  to  decide  what  the  law 
of  nations  is  on  this  subject.  If  the  Tribunal  shall  assent 
to  the  principles  which  I  have  insisted  upon,  and  shall  find 
them  to  be  embraced  within  the  provisions  of  the  three 
rules  of  this  treaty,  and  that  the  facts  in  the  case  require  the 
application  of  these  principles,  it  stands  admitted  that 


THE  ALABAMA  CLAIMS  639 

Great  Britain  has  not  used  and  has  refused  to  use  any  means 
whatever  for  the  interruption  of  these  contributory  pro 
visions  of  armament  and  munitions  to  the  offending  cruisers. 

It  is  not  for  me  to  dispute  the  ruling  of  the  eminent  law 
yers  of  Great  Britain  upon  their  Foreign  Enlistment  Act; 
but,  for  the  life  of  me,  I  cannot  see  why  the  "Alar"  and  the 
"Bahama"  and  the  "Laurel,"  when  they  sailed  from  the 
ports  of  England  with  no  cargo  whatever  except  the  arma 
ment  and  munitions  of  war  of  one  of  these  cruisers,  and  with 
no  errand  and  no  employment  except  that  of  the  Rebel 
Government,  through  its  agents,  to  transport  these  arma 
ments  and  munitions  to  the  cruisers  which  awaited  them, 
were  not  "transports"  in  the  service  of  one  of  the  belligerents 
within  the  meaning  of  the  Foreign  Enlistment  Act  of  Great 
Britain.  That,  however,  is  a  question  of  municipal  law.  It 
is  with  international  law  that  we  are  dealing  now  and  here. 
The  whole  argument  to  escape  the  consequences  which  inter 
national  law  visits  upon  the  neutral  for  its  infractions,  has 
been,  that  whatever  was  blameworthy  was  so  only  as  an 
infraction  of  the  municipal  law  of  Great  Britain.  And 
when  you  come  to  transactions  of  the  kind  I  am  now  discuss 
ing,  as  they  were  not  deemed  violations  of  the  Foreign  Enlist 
ment  Act  nor  of  international  law,  and  as  the  powers  of  the 
Government  by  force  to  intercept,  through  the  exercise  of 
prerogative,  or  otherwise,  did  not  come  into  play,  the  argu 
ment  is  that  there  were  no  consequences  whatever  to  result 
from  these  transactions.  They  were  merely  considered  as 
commercial  transactions  in  contraband  of  war. 

But  the  moment  it  is  held  that  these  things  were  forbidden 
by  the  law  of  nations,  then  of  course  it  is  no  answer  to  say, 
you  cannot  indict  anybody  for  them  under  the  law  of  Great 
Britain.  Nor  does  the  law  of  nations,  having  laid  down  a 
duty  and  established  its  violation  as  a  crime,  furnish  no 
means  of  redressing  the  injury  or  of  correcting  or  punishing 
the  evil.  What  course  does  it  sanction  when  neutral  terri- 


640         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

tory  is  violated  by  taking  prizes  within  it?  When  the 
prize  comes  within  the  jurisdiction  of  the  neutral,  he  is  auth 
orized  to  take  it  from  the  offending  belligerent  by  force  and 
release  it.  What  course  does  it  sanction  when  a  cruiser 
has  been  armed  within  neutral  territory?  When  the  vessel 
comes  within  the  jurisdiction  of  the  neutral,  he  is  authorized 
to  disarm  it. 

Now,  our  proposition  is  that  these  cruisers,  thus  deriving 
their  force  for  war  by  these  outfits  of  tenders  with  their 
armament  and  munitions  and  men,  when  brought  within 
the  British  jurisdiction,  should  have  been  disarmed  because 
they  had  been  armed,  in  the  sense  of  the  law  of  nations,  by 
using  as  a  base  of  their  maritime  hostilities,  or  their  maritime 
fitting  for  hostilities,  the  ports  and  waters  of  this  neutral 
state. 

Why,  what  would  be  thought  of  a  cruiser  of  the  United 
States  lying  off  the  port  of  Liverpool,  or  the  port  of  Ushant 
in  France,  and  awaiting  there  the  arrival  of  a  tender  coming 
from  Liverpool,  or  from  Southampton,  by  pre-arrangement, 
with  an  augmentation  of  her  battery  and  the  supply  of  her 
fighting  crew?  Would  it,  because  the  vessel  had  not  entered 
the  port  of  Southampton  or  the  port  of  Liverpool,  be  less  a 
violation  of  the  law  of  nations  which  prohibited  the  augmen 
tation  of  the  force  of  a  fighting  vessel  of  any  belligerent  from 
the  contributions  of  the  ports  of  the  neutral? 

The  fourth  chapter  of  this  special  argument  is  occupied,  as 
I  have  already  suggested,  with  the  consideration  of  the  true 
interpretation  of  the  rules  of  the  treaty,  under  general  canons 
of  criticism,  and  under  the  light  which  should  be  thrown 
upon  their  interpretation  by  the  doctrines  and  practices  of 
nations.  I  respectfully  submit,  however,  that  the  only 
really  useful  instruction  that  should  be  sought,  or  can  be 
applied,  in  aid  of  your  interpretation  of  these  rules,  if  their 
interpretation  needs  any  aid,  is  to  be  drawn  from  the  situa 
tion  of  the  parties,  and  the  elements  of  the  controversy 


THE  ALABAMA  CLAIMS  641 

between  them,  for  the  settlement  and  composition  of  which 
these  rules  were  framed;  and  this  Tribunal  was  created  to 
investigate  the  facts  and  to  apply  the  rules  to  them  in  its 
award. 

The  whole  ground  of  this  controversy  is  expressed  in  the 
firmest  and  most  distinct  manner  by  the  statesmen,  on  both 
sides,  who  had  charge  of  the  negotiations  between  the  two 
countries,  and  who  could  not  misunderstand  what  were  the 
situation  and  the  field  of  debate  for  application  to  which 
the  High  Contracting  Parties  framed  these  rules.  And 
what  were  they?  Why,  primarily,  it  was  this  very  question 
of  the  various  forms  of  contributory  aid  from  the  neutral 
ports  and  waters  of  Great  Britain,  by  which  the  Confederate 
navy  had  been  made,  by  which  it  was  armed,  by  which  it 
was  supplied,  by  which  it  was  kept  on  foot,  by  which,  with 
out  any  base  within  the  belligerent  territory,  it  maintained  a 
maritime  war. 

Anterior  to  the  negotiation  which  produced  the  treaty, 
there  is  this  public  declaration  made  by  Mr.  Gladstone,  and 
cited  on  page  215  of  the  case  of  the  United  States,  "There 
is  no  doubt  that  Jefferson  Davis  and  other  leaders  of  the 
South  have  made  an  army;  they  are  making,  it  appears, 
a  navy" 

There  is  the  speech  of  Lord  Russell  on  the  26th  of  April 
1864,  also  cited  on  the  same  page:  "It  has  been  usual  for  a 
power  carrying  on  war  upon  the  seas,  to  possess  ports  of  its 
own  in  which  vessels  are  built,  equipped,  and  fitted,  and 
from  which  they  issue,  to  which  they  bring  their  prizes,  and 
in  which  those  prizes,  when  brought  before  a  court,  are  either 
condemned  or  restored.  But  it  so  happens  that  in  this 
conflict,  the  Confederate  States  have  no  ports  except  those 
of  the  Mersey  and  of  the  Clyde,  from  which  they  fit  out 
ships  to  cruise  against  the  Federals;  and  having  no  ports  to 
which  to  bring  their  prizes,  they  are  obliged  to  burn  them 
on  the  high  seas."  There  is,  furthermore,  the  declaration 

43 


642         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

of  Mr.  Fish,  made  as  Secretary  of  State,  in  his  celebrated 
despatch  of  the  25th  of  September,  1869,  in  which  he  dis 
tinctly  proposes  to  the  British  Government,  in  regard  to 
the  claim  of  the  United  States  in  this  controversy,  that  the 
rebel  counsels  have  made  Great  Britain  "the  arsenal,  the 
navy-yard,  and  the  treasury  of  the  insurgent  Confederates." 

That  was  the  controversy  between  the  two  countries,  for 
the  solution  of  which  the  rules  of  this  treaty  and  the  delib 
erations  of  this  Tribunal  were  to  be  called  into  action;  and 
they  are  intended  to  cover,  and  do  cover,  all  the  forms  in 
which  this  use  of  Great  Britain  for  the  means  and  the 
opportunities  of  keeping  on  foot  these  maritime  hostilities 
was  practised.  The  first  rule  covers  all  questions  of  the 
outfit  of  the  cruisers  themselves;  the  second  rule  covers  all 
the  means  by  which  the  neutral  ports  and  waters  of  Great 
Britain  were  used  as  bases  for  the  rebel  maritime  operations 
of  these  cruisers,  and  for  the  provision,  the  renewal  or  the 
augmentation  of  their  force  of  armament,  munitions,  and 
men.  Both  nations  so  agreed.  The  eminent  Counsel  for 
the  British  Government,  in  the  special  argument  to  which 
I  am  now  replying,  also  agrees  that  the  second  rule,  under 
which  the  present  discussion  arises,  is  conformed  to  the  pre 
existing  law  of  nations. 

We  find,  however,  in  this  chapter  of  the  special  argument, 
another  introduction  of  the  retroactive  effect,  as  it  is  called, 
of  these  Rules,  as  a  reason  why  their  interpretation  should 
be  different  from  what  might  otherwise  be  insisted  upon. 
This  is  but  a  reappearance  of  what  I  have  already  exposed 
as  a  vice  in  the  argument,  viz.,  that  these  rules,  in  respect  to 
the  very  subject  for  which  they  were  framed,  do  not  mean 
the  same  thing  as  they  are  to  mean  hereafter,  when  new 
situations  arise  for  their  application.  Special  methods  of 
criticism,  artificial  limits  of  application  are  resorted  to,  to 
disparage  or  distort  them,  as  binding  and  authoritative 
rules,  in  regard  to  the  past  conduct  of  Great  Britain.  Why, 


THE  ALABAMA  CLAIMS  643 

you  might  as  well  tear  the  treaty  in  pieces,  as  to  introduce 
and  insist  upon  any  proposition,  whether  of  interpretation 
or  of  application,  which  results  in  the  demand  that  the  very 
controversy  for  which  they  were  framed  is  not  really  to  be 
governed  by  the  rules  of  the  treaty. 

The  concluding  observation  of  this  chapter  that  the  invita 
tion  to  other  powers  to  adopt  these  rules  as  binding  upon 
them,  contained  in  the  treaty,  should  discourage  a  forced 
and  exaggerated  construction  of  them,  I  assent  to;  not  so 
much  upon  the  motive  suggested,  as  upon  the  principle  that 
a  forced  and  exaggerated  construction  should  not  be  resorted 
to,  upon  either  side,  upon  any  motive  whatever. 

I  now  come  to  the  more  general  chapter  in  the  argument 
of  the  learned  Counsel,  the  first  chapter,  which  presents 
under  forty-three  sections,  a  very  extensive  and  very  com 
prehensive,  and,  certainly,  a  very  able  criticism  upon  the 
main  argument  of  the  United  States  upon  "due  diligence," 
and  upon  the  duties  in  regard  to  which  due  diligence  was 
required  and  in  regard  to  the  means  for  the  performance 
of  those  duties  and  the  application  of  this  due  diligence, 
possessed  by  Great  Britain.  Certainly,  these  form  a  very 
material  portion  of  the  argument  of  the  United  States;  and 
that  argument,  as  I  have  said,  has  been  subjected  to  a  very 
extensive  criticism.  Referring  the  Tribunal  to  our  argu 
ment  itself  as  furnishing,  at  least,  what  we  suppose  to  be  a 
clear  and  intelligible  view  of  our  propositions,  of  the  grounds 
upon  which  they  rest,  of  the  reasoning  which  supports 
them,  of  the  authorities  which  sustain  them,  of  their  appli 
cability  and  of  the  result  which  they  lead  to — the  inculpa 
tion  of  Great  Britain  in  the  matters  now  under  judgment, 
we  shall  yet  think  it  right  to  pass  under  review  a  few  of 
the  general  topics  which  are  considered  in  this  discussion 
of  "due  diligence." 

The  sections  from  7  to  16  (the  earlier  sections  having 
been  already  considered)  are  occupied  with  a  discussion  of 


644         SPEECHES  OF  WILLIAM  MAXWELL  EVAETS 

what  are  supposed  to  be  the  views  of  the  American  argu 
ment  on  the  subject  of  prerogative  or  executive  power,  as 
distinguished  from  the  ordinary  administration  of  authority 
through  the  instrumentality  of  courts  of  justice  and  their 
procedure.  Although  we  may  not  pretend  to  have  as  accu 
rate  views  of  constitutional  questions  pertaining  to  the 
nation  of  Great  Britain,  or  to  the  general  principles  of  her 
common  law,  or  of  the  effect  of  her  statutory  regulations 
and  of  her  judicial  decisions  as  the  eminent  Counsel  of  her 
Britannic  Majesty,  yet  I  think  it  will  be  found  that  the 
criticisms  upon  our  argument  in  these  respects  are  not,  by 
any  means,  sound.  It  is,  of  course,  a  matter  of  the  least 
possible  consequence  to  us,  in  any  position  which  we 
occupy,  either  as  a  nation  before  this  Tribunal  or  as  lawyers 
in  our  argument,  whether  or  not  the  sum  of  the  obligations 
of  Great  Britain  in  this  behalf  under  the  law  of  nations  was 
referred  for  its  execution  to  this  or  that  authority  under  its 
constitution,  or  to  this  or  that  official  action  under  its 
administration.  One  object  of  our  argument  has  been  to 
show  that,  if  the  sum  of  these  obligations  was  not  performed, 
it  was  a  matter  of  but  little  importance  to  us,  or  to  this  Tri 
bunal,  where,  in  the  distribution  of  administrative  duty,  or 
where,  in  the  constitutional  disposition  of  authority,  the 
defect,  either  of  power,  or  in  the  due  exercise  of  power,  was 
found  to  be  the  guilty  cause  of  the  result.  Yet,  strangely 
enough,  when,  in  a  certain  section  of  our  argument,  that  is 
laid  down  as  one  proposition,  we  are  accused  by  the  learned 
Counsel  of  a  petitio  principii,  of  begging  the  question,  that 
the  sum  of  her  obligations  was  not  performed  by  Great 
Britain. 

With  regard  to  prerogative  the  learned  counsel  seems  to 
think  that  the  existence  of  the  supposed  executive  powers 
under  the  British  Constitution,  and  which  our  argument 
has  assigned  to  the  prerogative  of  the  Crown,  savors  of 
arbitrary  or  despotic  power.  We  have  no  occasion  to  go 


THE  ALABAMA  CLAIMS  645 

into  the  history  of  the  prerogative  of  the  British  Crown,  or 
to  consider  through  what  modifications  it  has  reached  its 
present  condition.  When  a  free  nation  like  Great  Britain, 
assigns  certain  functions  to  be  executed  by  the  Crown  there 
does  not  seem  to  be  any  danger  to  its  liberties  from  that 
distribution  of  authority,  when  we  remember  that  Parlia 
ment  has  full  power  to  arrange,  modify,  or  curtail  the 
prerogative  at  its  pleasure,  and  when  every  instrument  of 
the  Crown,  in  the  exercise  of  the  prerogative,  is  subject  to 
impeachment  for  its  abuse. 

The  prerogative  is  trusted  under  the  British  constitution 
with  all  the  international  intercourse  of  peace  and  war,  with 
all  the  duties  and  responsibilities  of  changing  peace  to  war, 
or  war  to  peace,  and  also  in  regard  to  all  the  international 
obligations  and  responsibilities  which  grow  out  of  a  declared 
or  actual  situation  of  neutrality  when  hostilities  are  pending 
between  other  nations.  Of  that  general  proposition  there 
seems  to  be  no  dispute.  But  it  is  alleged  that  there  is  a 
strange  confusion  of  ideas  in  our  minds  and  in  our  argument, 
in  not  drawing  the  distinction  between  what  is  thus  properly 
ascribable  to  extra  territoriality  or  ad  extra  administration, 
what  deals  with  outward  relations  and  what  has  to  do  with 
persons  and  property  within  the  kingdom.  This  prerog 
ative,  it  is  insisted,  gives  no  power  over  persons  and  prop 
erty  within  the  kingdom  of  Great  Britain,  and  it  is  further 
insisted  that  the  Foreign  Enlistment  Act  was  the  whole 
measure  of  the  authority  of  the  Government,  and  the  whole 
measure  therefore  of  its  duty,  within  the  kingdom.  It  is 
said  the  Government  had  no  power  by  prerogative  to  make 
that  a  crime  in  the  kingdom  which  is  not  a  crime  by  the  law, 
or  of  punishing  a  crime  in  any  other  manner  than  through 
the  courts  of  justice.  This  of  course  is  sound,  as  well  as 
familiar,  law.  But  the  interesting  question  is,  whether  the 
nation  is  supplied  with  adequate  legislation,  if  that  is  to 
furnish  the  only  means  for  the  exercise  of  international  duty. 


646         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

If  it  is  not  so  supplied,  that  is  a  fault  as  between  the  two 
nations;  if  it  is  so  supplied,  and  the  powers  are  not  properly 
exercised,  that  is  equally  a  fault  as  between  the  two  nations. 
The  course  of  the  American  argument  is  to  show  that,  either 
on  the  one  or  the  other  of  the  horns  of  this  dilemma,  the 
actual  conduct  of  the  British  Government  must  be  impaled. 

We  are  instructed  in  this  special  argument  as  to  what,  in 
the  opinion  of  the  eminent  Counsel,  belongs  to  prerogative, 
and  what  to  judicial  action  under  the  statute;  but  we  find 
no  limitation  of  what  is  in  the  power  of  Parliament,  or  in 
the  power  of  administration,  if  adequate  parliamentary 
provision  be  made  for  its  exercise.  But  all  this  course  of 
argument,  ingenious,  subtle  and  intricate  as  it  is,  finally 
brings  the  eminent  Counsel  around  to  this  point,  that  by  the 
common  law  of  England  within  the  realm,  there  is  power 
in  the  Crown  to  use  all  the  executive  authority  of  the  nation, 
civil  and  military,  to  prevent  a  hostile  act  towards  another 
nation  within  that  territory.  That  is  but  another  name  for 
prerogative,  there  is  no  statute  on  that  subject,  and  no  writ 
from  any  Court  can  issue  to  accomplish  that  object. 

If  this  is  undoubtedly  part  of  the  common  law  of  England, 
as  the  learned  Counsel  states,  the  argument  here  turns 
upon  nothing  else  but  the  old  controversy  between  us, 
whether  these  acts  were  in  the  nature  of  hostile  acts,  under 
the  condemnation  of  the  law  of  nations  as  such,  that  ought 
to  have  been  intercepted  by  the  exercise  of  prerogative,  or 
by  the  power  of  the  Crown  at  common  law,  whichever  you 
choose  to  call  it.  The  object  of  all  the  discussion  of  the 
learned  Counsel  is  continually  to  bring  it  back  to  the  point 
that  within  the  kingdom  of  Great  Britain,  the  Foreign 
Enlistment  Act  was  the  sole  authority  for  action  and  pre 
vention,  and  if  these  vessels  were  reasonably  proceeded 
against,  under  the  requirements  of  administrative  duty  in 
enforcing  the  Foreign  Enlistment  Act,  as  against  persons 
and  property  for  confiscation  or  for  punishment,  that  was 
all  that  was  necessary  or  proper. 


THE  ALABAMA  CLAIMS  647 

SIR  ALEXANDER  COCKBURN:  Am  I  to  understand  you 
as  a  lawyer  to  say  that  it  was  competent  for  the  authorities 
at  the  port  whence  such  a  vessel  escaped  to  order  out  troops 
and  command  them  to  fire? 

MR.  EVARTS:  That  will  depend  upon  the  question 
whether  that  was  the  only  way  to  compel  her  to  an  obser 
vance. 

SIR  ALEXANDER  COCKBURN:  I  put  the  question  to  you 
in  the  concrete. 

MR.  EVARTS:  That  would  draw  me  to  another  subject, 
viz.,  a  discussion  of  the  facts.  But  I  will  say  that  it  depends 
upon  whether  the  act  she  is  engaged  in  committing  comes 
within  the  category  of  hostile  acts. 

SIR  ALEXANDER  COCKBURN:  But  taking  this  case,  and 
laying  aside  the  question  of  due  diligence.  The  vessel  is 
going  out  of  the  Mersey.  Do  you  say  as  a  lawyer  that  she 
should  be  fired  upon? 

MR.  EVARTS:   Under  proper  circumstances,  yes. 

SIR  ALEXANDER  COCKBURN:  But  I  put  the  circum 
stances. 

MR.  EVARTS:  You  must  give  me  the  attending  circum 
stances  that  show  such  an  act  of  force  is  necessary  to  secure 
the  execution  of  the  public  authority.  You  do  not  put  in 
the  element  that  that  is  the  only  way  to  bring  such  a  vessel 
to.  If  you  add  that  element,  then  I  say  yes. 

SIR  ALEXANDER  COCKBURN:  She  is  going  out  of  the 
port.  They  know  she  is  trying  to  escape  from  the  port.  Do 
you,  I  again  ask — do  you,  as  a  lawyer,  say  that  it  would  be 
competent  for  the  authorities  without  a  warrant,  simply 
because  this  is  a  violation  of  the  law,  to  fire  on  that  vessel? 

MR.  EVARTS:  Certainly,  after  the  usual  preliminaries  of 
hailing  her,  and  firing  across  her  bows,  to  bring  her  to. 
Finally,  if  she  insists  on  proceeding  on  her  way,  and  thus 
raises  the  issue  of  escape  from  the  Government,  or  forcible 
arrest  by  the  Government,  you  are  to  fire  into  her.  It 


648         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

becomes  a  question  whether  the  Government  is  to  surrender 
to  the  ship,  or  the  ship  to  the  Government.  Of  course,  the 
lawfulness  of  this  action  depends  upon  the  question  whether 
the  act  committed  is,  under  the  law  of  nations,  a  violation  of 
the  neutrality  of  the  territory,  and  a  hostile  act,  as  it  is  conceded 
throughout  this  argument,  the  evasion  of  an  armed  ship 
would  be. 

In  section  sixteen  of  this  argument  you  will  find  the  state 
ment  of  the  learned  Counsel  on  this  subject  of  the  executive 
powers  of  the  British  Government  in  this  behalf : 

It  is  impossible  too  pointedly  to  deny  the  truth  of  this  assumption, 
or  too  pointedly  to  state  that,  if  any  military  or  naval  expeditions, 
or  any  other  acts  or  operations  of  war,  against  the  United  States, 
in  the  true  and  proper  sense  of  these  words,  had  been  attempted 
within  British  territory,  it  would  not  have  been  necessary  for  the 
British  Government,  either  to  suspend  the  Habeas  Corpus  Act,  or 
to  rely  on  the  Foreign  Enlistment  Act,  in  order  to  enable  it  to 
intercept  and  prevent  by  force  such  expeditions,  or  such  acts  or 
operations  of  war.  The  whole  civil  police,  and  the  whole  naval 
and  military  forces  of  the  British  Crown,  would  have  been  law 
fully  available  to  the  Executive  Government,  by  the  common  law  of 
the  realm,  for  the  prevention  of  such  proceedings. 

This  is  the  law  of  England  as  understood  by  the  eminent 
Counsel  who  has  presented  this  argument.  Given  the  facts 
that  make  the  evasion  from  the  port  of  Liverpool  of  the 
vessel  proposed,  a  violation  of  the  law  of  nations, — because 
it  is  a  hostile  act  against  the  United  States,  and  exposes 
Great  Britain  to  responsibility  for  the  violation  of  neutral 
ity, — then,  the  situation  has  arisen,  in  the  failure  of  civil 
means,  the  failure  of  remonstrance,  of  arrest  and  of  bringing 
to,  for  firing  into  the  vessel.  For  certainly,  if  we  have 
authority  to  stop,  we  are  not  to  have  that  authority  met 
and  frustrated  by  the  persistence  of  violent  resistance  to  it. 

It  certainly  makes  very  little  difference  to  us  whether  this 
authority  of  the  executive  to  use  all  its  forces  for  the  actual 
prevention  of  the  occurrence  of  these  hostile  transactions 


THE  ALABAMA  CLAIMS  649 

within  the  realm,  is  lodged  in  what  he  calls  the  common  law 
of  Great  Britain,  or  is  found,  as  we  suppose,  in  the  preroga 
tive  of  the  Crown.  Nor  do  I  understand  this  argument, 
throughout,  to  quarrel  with  the  proposition  that  an  armed 
ship  that  should  undertake  to  proceed  out  of  the  port  of 
Liverpool,  would  be  exposed  to  the  exercise  of  that  power; 
and,  of  course,  if  the  proper  circumstances  arose,  even  to  the 
extent  to  which  it  has  been  pushed  in  answer  to  the  questions 
put  to  me  by  one  of  the  members  of  the  Tribunal.  For,  if 
the  Queen  is  to  use  all  her  power  to  prevent  a  hostile  act, 
and  if  an  armed  vessel  is,  in  its  evasion  of  a  port,  com 
mitting  a  hostile  act,  that  power  can  be  exerted  to  the  point 
of  firing  into  such  vessel,  if  necessary,  as  well  as  of  merely 
exerting  the  slightest  touch,  if  that  proves  sufficient  to 
accomplish  the  object.* 

*  It  would  seem  to  be  quite  in  accordance  with  the  ordinary  course  of  Govern 
ments  in  dealing  with  armed  (or  merchant)  ships,  that  refuse  obedience  to  a  peace 
ful  summons  of  sovereignty  to  submit  to  its  authority,  to  enforce  that  summons  by 
firing  into  the  contumacious  ship. 

In  "Phillimore,"  Vol.  Ill,  pp.  231-234,  will  be  found  the  orders  of  the  British 
Government  in  the  matter  of  the  "Terceira  Expedition,"  and  an  account  of  their 
execution.  Captain  Walpole  "fired  two  shots,  to  bring  them  to,  but  they  continued 
their  course.  The  vessel,  on  board  of  which  was  Saldanha,  although  now  within 
point  blank  range  of  the  'Ranger's'  guns,  seemed  determined  to  push  in  at  all 
hazards.  To  prevent  him  from  effecting  his  object,  Captain  Walpole  was  under  the 
necessity  of  firing  a  shot  at  the  vessel,  which  killed  one  man  and  wounded  another." 
P.  232. 

The  eighth  article  of  the  Biazilian  Circular  of  June  23,  1863,  provides  for  the 
necessary  exhibition  of  force,  as  follows: 

"8.  Finally,  force  shall  be  used  (and  in  the  absence  or  insufficiency  of  this,  a 
solemn  and  earnest  protest  shall  be  made)  against  a  belligerent  who,  on  being 
notified  and  warned,  does  not  desist  from  the  violation  of  the  neutrality  of  the  Empire. 
Forts  and  vessels  of  war  shall  be  ordered  to  fire  on  a  belligerent,  who  shall,"  etc. — 7 
Am.  App.,  p.  113. 

Indeed,  there  is  no  alternative,  unless  the  solution  of  the  difficulty  laid  down  by 
Dogberry  is  preferred: 

"Dogberry.     You  are  to  bid  any  man  stand  in  the  prince's  name. 

"Watch.    How  if  he  will  not  stand? 

"Dogberry.  Why,  then,  take  no  note  of  him,  but  let  him  go;  and  presently 
call  the  rest  of  the  watch  together,  and  thank  God  you  are  rid  of  a  knave."  Shakes 
peare,  Much  Ado  about  Nothing,  Act  III,  section  3. 


650         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

Sections  17  to  25  are  occupied  with  a  discussion  concern 
ing  the  preventive  powers  and  punitive  powers  under  the 
legislation  of  Great  Britain  as  compared  with  that  of  the 
United  States.  While  there  is  here  a  denial  that  the  British 
Government  ever  put  itself  upon  a  necessary  confinement  to 
the  punitive  powers  of  that  act,  or  that  that  act  contains  no 
preventive  power,  or  that  it  contains  not  so  much  as  the  act  of 
the  United  States,  still,  after  all,  I  find  no  progress  made 
beyond  this:  that  the  preventive  powers,  thus  relied  upon 
and  thus  asserted,  as  having  origin  under,  and  by  virtue  of, 
the  act,  are  confined  to  the  prevention  that  springs  out  of 
the  ability  to  punish,  or  out  of  the  mode  in  which  the  power 
to  punish  is  exercised. 

Nor  will  the  text  of  the  Foreign  Enlistment  Act  furnish 
any  evidence  that  it  provides  any  power  for  the  prevention 
by  law  of  the  evasion  of  such  a  vessel,  except  in  the  form  of 
prosecution  for  confiscation,  which  is  one  of  the  modes  of 
punishment.  And  when  this  Foreign  Enlistment  Act  was 
passed  in  1819,  it  was  thus  left  unaccompanied  by  any  execu 
tive  power  of  interception  and  prevention,  for  the  reason, 
as  shown  in  the  debates,  that  this  interceptive  and  preven 
tive  power  resided  in  the  prerogative  of  the  Crown,  and 
could  be  exercised  by  it.  This  will  be  seen  from  the  debates 
which  we  have  appended  in  Note  B  to  our  argument. 

In  comparing  that  law  with  the  preceding  act  passed  in 
1818  by  the  American  Government,  the  debates  in  Parlia 
ment  gave  as  the  reason  for  the  lodgment  of  this  preventive 
power  in  the  Executive  of  the  United  States,  by  the  act  of 
Congress,  and  for  its  not  being  necessary  to  lodge  a  similar 
preventive  power  in  the  British  Crown,  that  there  was  no 
prerogative  in  America,  while  there  was  in  Great  Britain. 

To  be  sure,  when  one  of  the  punishments  provided  by  law 
is  a  proceeding  in  rem  for  confiscation  of  the  vessel,  if  you 
serve  your  process  at  a  time  and  under  circumstances  to 
prevent  a  departure  of  the  vessel  on  its  illegal  errand,  you 


THE  ALABAMA  CLAIMS  651 

do  effect  a  detention.  But  that  is  all.  The  trouble  with 
that  detention  is,  that  it  is  only  a  detention  of  process,  to 
bring  to  issue  and  trial  a  question  of  private  right,  a  confisca 
tion  of  the  ship,  which  is  to  be  governed  by  all  the  rules  of 
law  and  evidence,  which  are  attendant  upon  the  exercise  of 
authority  by  the  Crown,  in  taking  away  the  property  of  the 
subject. 

It  never  was  of  any  practical  importance  to  the  United 
States,  whether  the  British  Government  confiscated  a  ship 
or  imprisoned  the  malefactors,  except  so  far  as  this  might 
indicate  the  feelings  and  sympathy  of  that  nation.  All  we 
wished  was,  that  the  Government  should  prevent  these  ves 
sels  from  going  out.  It  was  not  a  question  with  us,  whether 
they  punished  this  or  that  man,  or  insisted  upon  this  or  that 
confiscation,  provided  the  interception  of  the  cruisers  was 
effected.  When,  therefore,  we  claimed  under  the  Foreign 
Enlistment  Act  or  otherwise,  that  these  vessels  should  be 
seized  and  detained,  one  of  the  forms  of  punitive  recourse 
under  that  act  would  have  operated  a  detention,  if  applied 
at  the  proper  time  and  under  the  proper  circumstances.  Con 
fiscation  had  its  place  whenever  the  vessel  was  in  the  power 
of  the  Government;  but  it  was  only  by  interception  of  the 
enterprise  that  we  were  to  be  benefited.  That  interception, 
by  some  means  or  other,  we  had  a  right  to;  and  if  your  law, 
if  your  constitution,  had  so  arranged  matters  that  it  could 
not  be  had,  except  upon  the  ordinary  process,  the  ordinary 
motives,  the  ordinary  evidence,  and  the  ordinary  duty  by 
which  confiscation  of  private  property  was  obtained,  and 
that  provision  was  not  adequate  to  our  rights,  then  our  argu 
ment  is  that  your  law  needed  improvement. 

But  it  is  said  that  nothing  in  the  conduct  of  Great  Britain, 
of  practical  importance  to  the  United  States,  turned  upon 
the  question  whether  the  British  law,  the  Foreign  Enlist 
ment  Act,  was  applicable  only  to  an  armed  vessel,  or  was 
applicable  to  a  vessel  that  should  go  out  merely  prepared  to 


652         SPEECHES  OP  WILLIAM  MAXWELL  EVARTS 

take  its  armament.  How  is  it  that  nothing  turned  upon 
that  question?  It  is  so  said  because,  as  the  learned  Counsel 
contends,  the  Government  adopted  the  construction  that  the 
statute  did  embrace  the  case  of  a  vessel  unarmed.  But 
take  the  case  of  the  "Alabama,"  or  the  "Florida,"  for  an 
illustration,  and  see  how  this  pretension  is  justified  by  the 
facts.  What  occasioned  the  debates  of  administrative 
officers?  What  raised  the  difficulties  and  doubts  of  custom 
house  and  other  officials,  except  that  the  vessel  was  not 
armed,  when  as  regards  both  of  these  vessels  the  Executive 
Government  had  given  orders  that  they  should  be  watched? 
Watched!  watched,  indeed!  as  they  were  until  they  went 
out.  They  were  put  under  the  eye  of  a  watching  super 
vision,  to  have  it  known  whether  an  armament  went  on 
board,  in  order  that  then  they  might  be  reported,  and,  it 
may  be,  intercepted.  The  whole  administrative  question 
of  the  practical  application  of  authority  by  the  British  Gov 
ernment,  in  our  aid,  for  the  interception  of  these  vessels, 
turned  upon  the  circumstance  of  whether  the  vessel  was 
armed  or  was  not  armed.  Under  the  administration  of  that 
question,  they  went  out  without  armaments,  not  wishing  to 
be  stopped,  and,  by  pre-arrangement,  took  their  armaments 
from  tenders  that  subsequently  brought  them,  which,  also, 
could  not  be  stopped. 

Certain  observations  of  Baron  Bramwell  are  quoted  by 
the  learned  Counsel  in  this  connection,  which  are  useful  to 
us  as  illustrating  the  turning  point  in  the  question  as  to 
armed  and  unarmed  vessels.  They  are  to  this  effect,  and 
exhibit  the  British  doctrine: 

A  vessel  fitted  to  receive  her  armament  and  armed,  is  a 
vessel  that  should  be  stopped  under  an  international  duty. 
This  amounts  to  an  act  of  proximate  hostility  which  a 
neutral  is  bound  to  arrest.  Baron  Bramwell  held  that  the 
emission  of  a  vessel  armed  is,  undoubtedly,  a  hostile  expedi 
tion  within  the  meaning  of  the  law  of  nations.  But  a  vessel 


THE  ALABAMA  CLAIMS  653 

fitted  to  receive  her  armament  in  the  neutral  port,  and  sent 
out  of  that  port  by  the  belligerent  only  in  that  condition,  he 
held  is  not  an  enterprise  in  violation  of  the  law  of  nations, 
and  is  not  a  hostile  expedition  in  the  sense  of  that  law.  By 
consequence,  Baron  Bramwell  argued,  nothing  in  such  an 
enterprise  of  a  belligerent  from  a  neutral  port  calls  for  the 
exercise  of  authority  on  the  part  of  the  neutral,  either  by 
law  or  by  executive  interference,  and,  until  the  armament 
gets  on  board,  there  is  nothing  to  bring  the  case  within  the 
province  of  international  proscription  and  of  international 
responsibility.  It  was  then,  he  argues,  only  a  question  for 
Great  Britain  whether  the  provisions  of  the  Foreign  Enlist 
ment  Act  can  touch  such  a  vessel,  and  the  only  question  for 
the  British  Government  was  as  towards  the  United  States, 
have  they  done  their  duty  to  themselves  in  the  enforcement 
of  the  municipal  law,  which  involves  a  question  of  inter 
national  responsibility  to  the  United  States?  We  insist, 
therefore,  that  so  far  from  nothing  practical  turning  upon 
this  distinction,  all  the  doubts  and  difficulties  turn  upon  it, 
especially  in  connection  with  the  ancillary  proposition  that 
these  vessels  could  be  provided,  by  means  of  their  tenders, 
with  armaments,  without  any  accountability  for  the  com 
plete  hostile  expedition.* 

It  is  said  that  we  can  draw  no  argument  as  to  the  de 
ficiency  of  their  old  act,  from  the  improved  provisions  of  the 
new  act  of  1870.  Why  not?  When  we  say  that  your  act 
of  1819  was  not  adequate  to  the  situation,  and  that,  if  you 

*  Mr.  Theodore  Ortolan,  in  a  late  edition  of  his  "Diplomatic  de  la  Mer,"  tome 
II,  says: 

"Nous  nous  rattacherons,  pour  resoudre  en  droit  des  gens  les  difficultes  que 
presente  cette  nouvelle  situation,  a  un  principe  universellement  etabli,  qui  se 
formule  en  ce  peu  des  mots:  ' Inviolabilite  du  territoire  neutre.'  Cette  inviolab- 
ilite  est  un  droit  pour  1'etat  neutre,  dont  le  territoire  ne  doit  pas  6tre  atteint  par  les 
faits  de  guerre,  mais  elle  impose  aussj  a  ce  rne'me  etat  neutre  une  etroite  obligation, 
celle  de  ne  pas  permettre,  celle  d'emplcher,  activement  au  besoin,  1'emploi  de  ce 
territoire  par  1'une  des  parties  ou  au  profit  de  Tune  des  parties  belligerantes,  dans 
un  but  hostile  a  1'autre  partif,"  Caje  of  th^  JCT.  S.,  p.  182. 


654         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

had  no  prerogative  to  supply  its  defects,  you  should  have  sup 
plied  them  by  act  of  Parliament, — that  you  should  have 
furnished  by  legislation  the  means  for  the  performance  of  a 
duty  which  required  you  to  prevent  the  commission  of  the 
acts  which  we  complain  of — it  is  certainly  competent  for  us 
to  resort  to  the  fact  that,  when  our  war  was  over,  from 
thenceforth,  movements  were  made  towards  the  amendment 
of  your  law,  and  that,  when  the  late  war  on  the  continent  of 
Europe  opened,  your  new  Act  was  immediately  passed  con 
taining  all  the  present  provisions  of  practical  executive  inter 
ception  of  such  illegal  enterprises — it  is,  I  say,  competent  for 
us  to  refer  to  all  this  as  a  strong,  as  well  as  fair  argument,  to 
show  that,  even  in  the  opinion  of  the  British  Parliament,  the 
old  Act  was  not  adequate  to  the  performance  of  the  inter 
national  duties  of  Great  Britain  to  the  United  States. 

Sections  27  to  30  of  the  special  argument  are  occupied  with 
a  discussion  of  that  part  of  our  argument  which  alleges,  as 
want  of  due  diligence,  the  entire  failure  of  Great  Britain  to 
have  an  active,  effective,  and  spontaneous  investigation, 
scrutiny,  report  and  interceptive  prevention  of  enterprises 
of  this  kind.  Well,  the  comments  upon  this  are  of  two  kinds : 
first  concerning  the  question,  under  a  somewhat  prolonged 
discussion  of  facts,  whether  the  Government  did  or  did  not 
do  this,  that,  or  the  other  thing;*  and,  then,  concerning  the 
more  general  question,  as  to  whether  the  rules  of  this  treaty 
call  upon  this  Tribunal  to  inquire  into  any  such  deficiency 

*  It  does  not  seem  profitable  to  go  into  a  minute  examination  of  the  proofs  before 
the  Tribunal  to  establish  the  propositions  of  our  argument  specially  controverted 
in  section  29  and  30  of  the  present  argument  of  the  eminent  Counsel.  Although 
the  letter  of  Earl  Russell,  quoted  by  the  learned  Counsel,  does,  incidentally,  refer 
to  certain  instructions  having  been  given  to  subordinate  officials,  yet  we  look  in 
vain,  through  the  proofs  of  the  British  Government,  for  the  text  or  date  or  circula 
tion  of  these  instructions.  As  for  the  rest,  we  find  nothing  in  the  instances  cited, 
in  which  specific  information  happened  to  be  given  in  regard  to  this  or  that  vessel 
or  enterprise,  which  contravenes  our  general  propositions  of  fact,  in  this  behalf,  or 
the  inference  of  want  of  due  diligence  on  the  part  of  the  British  Government,  which 
we  have  drawn  from  those  facts. 


THE  ALABAMA  CLAIMS  655 

of  diligence  which  was  not  applicable  to  the  case  of  a  ves 
sel  respecting  which  the  British  Government  "had  reason 
able  ground  to  believe"  that  a  violation  of  the  law  was 
meditated. 

Our  answer  to  this  latter  question  is,  that  the  Rules  to 
gether,  in  their  true  construction,  require  the  application  of 
due  diligence  (particularly  under  the  special  emphasis  of  the 
third  rule),  "to  prevent"  the  occurrence  of  any  of  the  in 
fractions  of  the  law  of  nations  proscribed  by  the  rules. 

There  are  two  propositions  in  these  rules.  Certain  things 
are  assigned  as  violations  of  the  law  of  nations,  and  as  in 
volving  a  duty  on  the  part  of  a  neutral  Government  to  pre 
vent  them;  and  besides  in  and  towards  preventing  them  it  is 
its  duty  to  use  due  diligence.  In  regard  to  every  class  of  al 
leged  infractions  of  these  rules,  there  comes  to  be  an  inquiry, 
first,  whether  in  the  circumstances  and  facts  which  are  as 
signed,  the  alleged  infractions  are  a  violation  of  any  of  the 
duties  under  the  law  of  nations  as  prescribed  by  those  rules. 
If  not,  they  are  dismissed  from  your  consideration.  But  if 
they  are  so  found,  then  these  rules,  by  their  own  vigor,  be 
come  applicable  to  the  situation,  and  then  comes  the  inquiry 
whether  Great  Britain  did,  in  fact,  use  due  diligence  to  pre 
vent  the  proscribed  infractions.  It  is  under  the  sections  now 
under  review,  that  the  learned  Counsel  suggests  whether  it 
is  supposed  that  this  general  requirement  of  the  use  of  due 
diligence  by  Great  Britain  is  intended  to  cover  the  cases  of 
vessels  like  the  "Shenandoah"  and  the  "Georgia"  (which, 
it  is  alleged  the  British  Government  had  no  reasonable 
ground  to  believe  were  meditating  or  preparing  an  evasion  of 
the  laws  or  a  violation  of  the  duties  of  Great  Britain);  or 
the  cases  of  these  tenders,  that  supplied  the  "Georgia," 
and  the  "Shenandoah,"  and  the  "Florida,"  and  the  "Ala 
bama,"  with  their  armaments  and  munitions  of  war — it  is 
under  these  sections  that  this  discussion  arises.  The  answer 
on  our  part  to  this  suggestion  is,  that  the  general  means  of 


656         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

diligence  to  keep  the  Government  informed  of  facts  and 
enable  it  to  judge  whether  there  was  "reasonable  ground  to 
believe"  in  any  given  case,  and  thus  enable  it  to  be  prepared 
to  intercept  the  illegal  enterprise,  are  required  in  cases  that 
the  rules  proscribe  as  infractions  of  neutrality. 

I  will  agree  that  under  the  first  clause  of  the  first  rule  the 
duty  is  applied  to  a  vessel  concerning  which  the  Govern 
ment  "shall  have  reasonable  ground  to  believe,"  etc. 
Under  the  second  clause  of  the  first  rule,  this  phrase  is  omit 
ted,  and  the  question  of  "reasonable  ground  to  believe" 
forms  only  an  element  in  the  more  general  question  of  "due 
diligence."  Under  the  second  Rule  also,  the  whole  subject 
of  the  use  of  the  neutral  ports  and  waters  as  a  base  of  naval 
operations,  is  open;  and,  if  there  has  been  a  defect  of  dili 
gence  in  providing  the  officers  of  Great  Britain  with  the 
means  of  knowledge  and  the  means  of  action,  to  prevent  such 
use  of  its  ports  and  waters  as  a  base  of  operations,  why, 
then,  Great  Britain  is  at  fault  in  not  having  used  due  dili 
gence  to  prevent  such  use  of  its  ports  and  waters.  That  is 
our  argument;  and  it  seems  to  us,  it  is  a  sound  argument. 
It  is  very  strange,  if  it  is  not,  and  if  the  duty  of  a  govern 
ment  to  use  due  diligence  to  prevent  its  ports  and  waters 
from  being  used  as  a  base  of  naval  operations,  does  not  in 
clude  the  use  of  due  diligence  to  ascertain  whether  they  were 
being,  or  were  to  be,  so  used. 

It  was  a  fault  not  to  use  due  diligence  to  prevent  the  ports 
and  waters  of  Great  Britain  from  being  used  as  a  base  of 
naval  operations,  or  for  the  augmentation  of  force,  or  the 
recruitment  of  men.  And  to  admit  that  it  was  a  fault,  in 
any  case,  not  to  act  where  the  Government  had  cause  to 
believe  that  there  was  to  be  a  violation  of  law,  and  yet  to 
claim  that  it  was  no  fault  for  the  Government  to  be  guilty 
of  negligence  in  not  procuring  intelligence  and  information 
which  might  give  a  reasonable  ground  to  believe,  seems  to  me 
absurd. 


THE  ALABAMA  CLAIMS  657 

This,  indeed,  would  be  to  stamp  the  lesser  negligence,  of 
not  applying  due  diligence  in  a  particular  case  when  there 
was  "reasonable  ground  to  believe,"  as  a  fault,  entailing 
responsibility  upon  a  neutral  Government,  and  to  excuse  the 
same  Government  for  the  systematic  want  of  due  diligence 
which,  through  indifference  to  duty  and  voluntary  ignorance, 
did  not  allow  itself  to  be  placed  in  a  position  to  judge  whether 
the  ground  of  belief  was  reasonable,  or  whether  there  was  any 
ground  at  all  for  its  action.  The  lesser  fault  infers  that  the 
same  or  greater  responsibility,  is  imputable  to  the  greater 
fault. 

The  sections  of  the  special  argument  of  the  learned 
Counsel,  which  are  occupied  with  a  comparison  between  the 
practical  efficiency  of  the  American  and  of  the  English  Acts, 
and  in  which  the  propositions  of  our  argument,  in  this  re 
gard,  are  questioned  and  commented  upon,  will  be  replied  to 
by  my  learned  associate,  Mr.  Gushing,  in  an  argument  which 
he  will  present  to  the  Tribunal.  It  is  enough  for  me  to  re 
peat  here,  the  observation  of  our  argument,  that  the  true 
measure  of  the  vigor  of  an  act  is  its  judicial  interpretation 
and  its  practical  execution.  We  do  not  intend  to  allow  our 
selves  to  be  involved  in  discussions  as  to  the  propriety  of  this 
or  that  construction  of  the  English  act  which  reduced  its 
power.  The  question  with  us  is,  what  were  the  practical 
interpretation  and  exercise  of  the  powers  of  that  act,  as  com 
pared  with  the  practical  interpretation  and  exercise  of  the 
powers  of  the  Neutrality  Act  of  the  United  States? 

The  propositions  of  our  argument  seem  to  us  untouched  by 
any  of  the  criticisms  which  the  learned  Counsel  has  applied 
to  them.  We,  rightly  or  wrongly,  have  interpreted  our  act, 
from  its  first  enactment  to  the  present  time,  as  giving  au 
thority  to  the  Executive  of  the  United  States,  to  intercept 
by  direct  exercise  of  power,  all  these  prohibited  enterprises 
at  any  stage  at  which  he  can  lay  his  hands  upon  them,  for 
the  purpose  of  their  prevention.  The  correspondence  pro- 

44 


658         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

duced  in  our  proofs,  showing  the  action  of  the  Executive 
Government  on  all  the  occasions  in  which  this  statute  has 
been  required  to  be  enforced,  will  indicate  that,  whether  it 
has  been  successful  or  not  in  the  execution  of  the  duty,  the 
Government  has  recognized  the  duty,  the  Executive  has 
undertaken  it,  and  all  the  subordinates  have  had  their  at 
tention  called  to  it,  in  the  sense  and  to  the  end  of  preven 
tion.  All  subordinates  have,  as  well,  always  been  stimu 
lated  to  the  duty  of  keeping  the  Executive,  from  time  to 
time,  fully  and  promptly  supplied  with  information  to  secure 
the  efficient  execution  of  the  law:  And  it  is  not  improper, 
perhaps,  for  me  here  to  observe,  that  my  learned  associate, 
Mr.  Gushing,  and  myself,  having  been  called  upon  to  exe 
cute  this  statute  in  the  office  of  Attorney  General  of  the 
United  States,  we  can  bear  testimony  to  its  vigor  and  its 
efficiency,  in  the  every  day  action  of  the  Government.  It 
is  submitted  to  and  not  questioned,  and  produces  its  effect. 
Whether  the  Government  of  the  United  States,  possessing 
that  power  under  and  by  authority  of  the  statute,  has  always 
been  successful  or  not,  or  has  always  used  due  diligence  in 
its  exercise,  and  whether  it  is  accountable  to  this  or  that 
nation  for  a  faulty  execution  of  its  duties  of  neutrality,  are 
questions  which  this  Tribunal  cannot  dispose  of,  and  they 
are  only  remotely  collateral  to  any  discussions  properly  be 
fore  the  arbitrators. 

SIR  ALEXANDER  COCKBURN:  If  you  are  arguing  now 
upon  that  point,  Mr.  Evarts,  explain  this  to  me.  By  the 
last  English  Act  of  1870,  the  Secretary  of  State  has  power, 
under  certain  circumstances,  to  order  a  vessel  to  be  seized, 
and  then  it  is  provided  that  the  owner  of  such  vessel  may 
make  claim,  etc.,  which  the  Court  shall  as  soon  as  possible 
consider.  I  want  to  ask  you,  what,  under  your  act  of  1818, 
which  gives  power  to  the  President  to  seize,  under  similar 
circumstances,  would  be  the  course  of  proceedings  in  such  a 
case?  How  would  the  owner  be  able  to  know  whether  his 


THE  ALABAMA  CLAIMS  659 

vessel  was  one  liable  to  seizure  and  confiscation?  How  would 
he  get  his  vessel  back  again  according  to  your  form  of  pro 
cedure? 

MR.  EVARTS:  I  take  it  for  granted  that  the  detention 
which  the  President  might  authorize,  or  cause  to  be  made, 
would  not  be  an  indefinite  detention.  By  the  terms  of  the 
act,  however,  that  exercise  of  the  executive  power  is  not, 
necessarily,  terminated  by  a  judicial  appeal  of  any  kind. 

SIR  ALEXANDER  COCKBURN:  Do  you  mean  to  say  that 
the  ship  shall  remain  in  the  hands  of  the  Government? 

MR.  EVARTS:  If  the  party  chooses  so  to  leave  it  without 
satisfactory  explanation.  The  President  interposes  in  the 
discharge  of  a  public  duty,  to  prevent  the  commission  of  an 
act  in  violation  of  neutrality,  which  he  believes  to  be  illegal. 
On  representation  to  him  by  the  aggrieved  party,  he  will  re 
lease  the  vessel,  if  he  finds  reason.  If  he  does  not  so  re 
lease,  then  the  vessel  remains  subject  to  the  continued  exer 
cise  of  executive  control,  under  the  same  motives  that  first 
induced  it. 

SIR  ALEXANDER  COCKBURN:  Would  not  the  President, 
in  the  ordinary  practice  of  things,  direct  that  the  matter 
should  be  submitted  to  judicial  determination? 

MR.  EVARTS:  This  Executive  interception  carries  no 
confiscation.  It  merely  detains  the  vessel  and  the  owner 
can  apply  for  its  release,  giving  an  explanation  of  the  matter. 
But  the  Executive  may  say,  "I  am  not  satisfied  with  your 
explanation;  if  you  have  nothing  else  to  say,  I  will  keep  your 
vessel";  or  he  may  send  it  to  the  Courts  to  enforce  its  con 
fiscation. 

SIR  ALEXANDER  COCKBURN:  Which  does  he  practically  do? 

MR.  EVARTS:  He  practically,  when  not  satisfied  to  re 
lease  it,  usually  sends  it  to  the  Court,  because  the  situation 
admits  of  that  disposition  of  it.  Under  the  act  of  the  United 
States,  there  is  the  same  actual  interception  by  the  Execu 
tive  which  your  act  of  1870 — 


660         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

SIR  ALEXANDER  COCKBURN:  Under  our  act  the  Execu 
tive  has  no  discretion;  it  must  send  it  to  the  courts." 

MR.  EVARTS:  Under  our  act,  we  trust  the  Executive  for 
a  proper  exercise  of  the  official  authority  entrusted  to  him. 

In  the  American  case,  some  instances  of  the  exercise  of 
this  power  on  a  very  considerable  scale,  will  be  found. 
(Page  126  of  the  French  translation.)  The  documents  ex 
plaining  these  transactions  are  collected  at  length  in  the 
Appendix  to  the  American  counter-case. 

Sections  38  to  41  of  the  special  argument  call  in  question 
our  position  as  to  onus  probandi.  It  is  said,  that  we  im 
properly  undertake  to  shift,  generally,  the  burden  of  proof, 
and  require  Great  Britain  to  discharge  itself  from  liability 
by  affirmative  proof,  in  all  cases  where  we  charge  that  the 
act  done  is  within  the  obligation  of  the  three  rules.  This 
criticism  is  enforced  by  reference  to  a  case  arising  in  the  pub 
lic  action  of  the  United  States  under  the  treaty  of  1794  with 
Great  Britain. 

I  will  spend  but  few  words  here.  The  propositions  of  our 
argument  are  easily  understood  upon  that  point.  They 
come  to  this :  that,  whenever  the  United  States,  by  its  proofs, 
have  brought  the  case  in  hand  to  this  stage,  that  the  acts 
which  are  complained  of,  the  action  and  the  result  which 
have  arisen  from  it,  are  violations  of  the  requirements  of  the 
law  of  nations  as  laid  down  in  the  three  rules,  and  this 
action  has  taken  place  within  the  jurisdiction  of  Great 
Britain  (so  that  the  principal  fact  of  accountability  within 
the  nation  is  established),  then,  on  the  ordinary  principle 
that  the  affirmative  is  to  be  taken  up  by  that  party  which 
needs  its  exercise,  the  proof  of  "due  diligence"  is  to  be  sup 
plied  by  Great  Britain.  How  is  a  foreigner,  outside  of  the 
Government,  uninformed  of  its  conduct,  having  no  access  to 
its  deliberations  or  the  movements  of  the  Government,  to 
supply  the  proof  of  the  want  of  due  diligence?  We  repose, 
then,  upon  the  ordinary  principles  of  forensic  and  judicial 


THE  ALABAMA  CLAIMS  661 

reasoning.  When  the  act  complained  of  is  at  the  fault  of 
the  nation,  having  been  done  within  its  jurisdiction,  and  is 
a  violation  of  the  law  of  nations  for  which  there  is  an  ac 
countability  provided  by  these  three  rules,  the  point  of  de 
termination  whether  due  diligence  has  been  exercised  by  the 
authorities  of  the  country  to  prevent  it,  or  it  has  happened 
in  spite  of  the  exercise  of  due  diligence — the  burden  of  the 
proof  of  "due  diligence"  is  upon  the  party  charged  with  its 
exercise. 

Let  us  look  at  the  case  of  the  "Elizabeth/'  which  is  quoted 
in  section  41.  It  is  a  long  quotation  and  I  will  read,  there 
fore,  only,  the  concluding  part.  It  will  be  found  on  page 
50  of  the  French  translation  of  the  special  argument.  The 
question  was  as  to  the  burden  of  proof  under  the  obligation 
that  had  been  assumed  by  the  United  States : 

The  promise  was  conditional.  We  will  restore  in  all  those 
cases  of  complaint  where  it  shall  be  established  by  sufficient  testi 
mony  that  the  facts  are  true  which  form  the  basis  of  our  promise — 
that  is,  that  the  property  claimed  belongs  to  British  subjects; 
that  it  was  taken  either  within  the  line  of  jurisdictional  protection 
or,  if  on  the  high  seas,  then  by  some  vessel  illegally  armed  in  our 
ports ;  and  that  the  property  so  taken  has  been  brought  within  our 
ports.  By  whom  were  these  facts  to  be  proved?  According  to 
every  principle  of  reason,  justice,  or  equity,  it  belongs  to  him  who 
claims  the  benefit  of  a  promise  to  prove  that  he  is  the  person  in 
whose  favor,  or  under  the  circumstances  in  which  the  promise  was 
intended  to  operate. 

A  careful  perusal  of  this  passage  is  sufficient  to  show  that 
the  facts  here  insisted  upon  as  necessary  to  be  proved  by  the 
claimant,  are  precisely  equivalent  to  the  facts  which  the 
United  States  are  called  upon  to  prove  in  this  case.  These 
facts,  as  I  have  before  stated,  bring  the  circumstances  of  the 
claim  to  the  point  where  it  appears  that  the  responsibility 
for  the  injury  rests  upon  Great  Britain,  unless  due  diligence 
was  used  by  the  Government  to  prevent  the  mischievous  con- 


662         SPEECHES  OP  WILLIAM  MAXWELL  EVARTS 

duct  of  the  subjects  or  residents  of  that  kingdom  which  has 
produced  the  injuries  complained  of.  In  the  absence  of  this 
due  diligence  on  the  part  of  that  Government,  the  apparent 
responsibility  rests  undisturbed  by  the  exculpation  which  the 
presence  of  due  diligence  will  furnish.  The  party  needing 
the  benefit  of  this  proof,  upon  every  principle  of  sound  reason, 
must  furnish  it.  This  is  all  we  have  insisted  upon  in  the 
matter  of  the  burden  of  proof. 

In  conclusion  of  the  first  chapter  of  this  special  argument, 
the  eminent  Counsel,  at  section  43  takes  up  the  "  Terceira 
affair"  and  insists  that  if  Great  Britain,  in  a  particular  sit 
uation  for  the  exercise  of  duties  of  neutrality,  took  extraor 
dinary  measures,  it  does  not  prove  that  the  Government  were 
under  obligation  to  take  the  same  measures  in  every  similar 
or  comparable  situation. 

We  referred  to  the  "Terceira"  affair  for  the  purpose  of 
showing  that  the  Crown,  by  its  prerogative,  possessed 
authority  for  the  interception  of  enterprises  originating 
within  the  kingdom  for  the  violation  of  neutrality.  The 
question,  whether  the  Executive  will  use  it,  is  at  its  discre 
tion.  The  power  we  prove,  and,  in  the  discussions  in  both 
Houses  of  Parliament,  it  was  not  denied,  in  any  quarter, 
that  the  power  existed  to  the  extent  that  we  call  for  its  ex 
ercise  within  British  jurisdiction.  The  question  in  contro 
versy  then  was  (although  a  great  majority  of  both  Houses 
voted  against  the  resolutions  condemning  the  action  of  the 
Government),  whether,  in  the  waters  of  Portugal  or  upon 
the  seas,  the  Government  could,  with  strong  hand,  seize 
or  punish  vessels  which  had  violated  the  neutrality  of  Great 
Britain,  by  a  hostile,  though  unarmed,  expedition  from  its 
ports.  The  resolutions  in  both  Houses  of  Parliament  re 
ceived  the  support  of  only  a  small  minority.  Mr.  Philli- 
more,  however,  says  the  learned  Counsel,  expresses  the 
opinion,  in  his  valuable  work,  that  the  minority  were  right. 

SIR  ALEXANDER  COCKBURN:  I  confess  I  always  thought 
so  myself. 


THE  ALABAMA  CLAIMS  663 

MR.  EVARTS:  But  the  point  now  and  here  in  discussion, 
is,  what  were  the  powers  of  the  Crown  within  the  limits  of 
British  jurisdiction,  and  it  is  not  necessary  to  consider  who 
were  right  or  who  were  wrong  in  the  divisions  in  Parlia 
ment.  What  all  agreed  in  was,  that  the  fault  charged  upon 
the  Government  was  the  invasion  of  the  territorial  rights  of 
another  nation. 

But  we  cited  the  "Terceira"  affair  for  the  additional  pur 
pose  of  showing  the  actual  exercise  of  the  power  in  question, 
by  the  Crown,  in  that  case.  This  was  important  to  us  in 
our  argument;  it  justly  gave  support  to  the  imputation 
that  the  powers  of  the  Government  were  not  diligently  ex 
ercised  during  the  American  Rebellion,  in  our  behalf. 
Where  there  is  a  will,  there  is  a  way;  and  diligence  means 
the  use  of  all  the  faculties  necessary  and  suitable  to  the 
accomplishment  of  the  proposed  end. 

Now,  in  conclusion,  it  must  be  apparent  that  the  great 
interest,  both  in  regard  to  the  important  controversy  be 
tween  the  High  Contracting  Parties,  and  in  regard  to  the 
principles  of  the  law  of  nations  to  be  here  established,  turns 
upon  your  award.  That  award  is  to  settle  two  great  ques 
tions:  whether  the  acts  which  form  the  subject  of  the  ac 
cusation  and  the  defence,  are  shown  to  be  acts  that  are  pro 
scribed  by  the  law  of  nations,  as  expressed  in  the  three 
rules  of  the  treaty.  You  cannot  alter  the  nature  of  the  case 
between  the  two  nations,  as  shown  by  the  proofs.  The  facts 
being  indisputably  established  in  the  proofs,  you  are  then  to 
pass  upon  the  question  whether  the  outfit  of  these  tenders 
to  carry  forward  the  armament  of  the  hostile  expedition  to 
be  joined  to  it  outside  of  Great  Britain,  is  according  to  the 
law  of  nations,  or  not. 

When  you  pass  upon  the  question  whether  this  is  a  viola 
tion  of  the  second  rule,  you  pass  upon  the  question,  under  the 
law  of  nations,  whether  an  obligation  of  a  neutral  not  to 
allow  a  hostile  expedition  to  go  forth  from  its  ports  can  be 


664         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

evaded  by  having  it  sent  forth  in  parcels,  and  having  the 
combination  made  outside  its  waters.  You  cannot  so  de 
cide  in  this  case,  and  between  these  parties,  without  estab 
lishing  by  your  award,  as  a  general  proposition,  that  the  law 
of  nations  proscribing  such  hostile  expeditions,  may  be 
wholly  evaded,  wholly  set  at  naught  by  this  equivocation 
and  fraud  practiced  upon  it;  that  this  can  be  done,  not  by 
surprise, — for  anything  can  be  done  by  surprise, — but  that 
it  can  be  done  openly  and  of  right.  These  methods  of  com 
bination  outside  of  the  neutral  territory  may  be  resorted  to, 
for  the  violation  of  the  obligations  of  neutrality,  and  yet  the 
neutral  nation,  knowingly  suffering  and  permitting  it,  is 
free  from  responsibility!  This  certainly  is  a  great  question. 

If,  as  we  must  anticipate,  you  decide  that  these  things 
are  proscribed  by  the  law  of  nations,  the  next  question  is, 
was  "due  diligence"  used  by  Great  Britain  to  prevent  them. 

The  measure  of  diligence  actually  used  by  Great  Britain, 
the  ill  consequences  to  the  United  States  from  a  failure  on 
the  part  of  Great  Britain  to  use  a  greater  and  better  measure 
of  diligence,  are  evident  to  all  the  world.  Your  judgment, 
then,  upon  the  second  question,  is  to  pronounce  whether 
that  measure  of  diligence  which  was  used  and  is  known  to 
have  been  used,  and  which  produced  no  other  result  than  the 
maintenance,  for  four  years,  of  a  maritime  war,  upon  no 
other  base  than  that  furnished  from  the  ports  and  waters  of 
a  neutral  territory,  is  the  measure  of  "due  diligence,"  to 
prevent  such  use  of  neutral  territory,  which  is  required  by 
the  three  rules  of  the  treaty  of  Washington  for  the  exculpa 
tion  of  Great  Britain. 


VIII 

ARGUMENT  IN  BEHALF  OF  OWNERS  OF  THE 
CARGO  OF  THE  BARQUE  "SPRINGBOK," 
CLAIMANTS  AGAINST  THE  UNITED  STATES, 
BEFORE  THE  MIXED  COMMISSION  ON 
BRITISH  AND  AMERICAN  CLAIMS.  (THE 
"SPRINGBOK"  CASE) 

NOTE 

The  barque  "Springbok,"  laden  with  a  large  and  valuable  cargo 
of  general  merchandize,  a  very  small  portion  of  which  was  contra 
band  of  war,  ship  and  cargo  being  the  property  of  British  subjects, 
sailed  from  London  in  December,  1862,  bound  for  the  port  of 
Nassau,  in  New  Providence,  one  of  the  Bahama  Islands  under 
British  rule  and  jurisdiction.  On  her  way  the  vessel  with  her 
cargo  was  captured  by  a  United  States  cruiser  and  brought  to 
New  York  as  lawful  prize  of  war,  to  be  subjected  to  condemnation 
by  the  Courts  of  the  United  States.  The  ownership  of  the  vessel 
was  distinct  from  that  of  the  cargo.  Upon  the  trial  in  the  United 
States  District  Court  before  Judge  Betts,  a  decree  of  condemnation 
was  entered  against  both  ship  and  cargo.  The  decree  of  condemna 
tion  was  based  upon  the  findings  of  the  Court  that  (in  the  language 
of  the  decree)  "the  said  vessel,  at  the  time  of  her  capture  at  sea, 
was  knowingly  laden,  in  whole  or  in  part,  with  articles  contraband 
of  war,  with  intent  to  deliver  such  articles  to  the  aid  and  use  of  the 
enemy;  that  the  true  destination  of  the  said  ship  and  cargo  was  not 
to  Nassau  (a  neutral  port)  and  for  trade  and  commerce,  but  to 
some  port  lawfully  blockaded  by  the  forces  of  the  United  States, 
and  with  intent  to  violate  such  blockade;  and  further  that  the 
papers  of  said  vessel  were  simulated  and  false. " 

On  appeal  to  the  Supreme  Court  of  the  United  States,  the  con 
demnation  of  the  vessel  was  reversed  but  that  of  the  cargo  was 
sustained.*  The  condemnation  of  the  cargo  proceeded  upon  the 

*  Supreme  Court  Reports,  5  Wallace,  1.  The  Chief  Justice  delivered  the 
opinion  of  the  Court,  four  Associate  Justices  dissenting. 

665 


666         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

theory,  which  seems  to  have  been  based  upon  surmise,  conjecture 
and  moral  probability  rather  than  upon  proof,  that  it  was  the  in 
tention  of  the  owners  of  the  cargo  to  transship  at  Nassau  into  some 
other  vessel  for  the  purpose  of  running  the  blockade  of  the  Southern 
ports,  and  that  this  purpose  under  the  doctrine  of  "continuous 
voyages,"  rendered  the  cargo  subject  to  confiscation  by  the  of 
fended  belligerent  at  any  time  during  the  voyage,  after  leaving  the 
port  of  origin.  The  grounds  of  the  decision  of  the  Supreme  Court 
are  subjected  to  a  critical  analysis  in  Mr.  Evarts's  argument  ad 
dressed  to  this  Mixed  Commission. 

The  Court's  decision  was,  and  has  been  ever  since,  the  subject  of 
much  adverse  criticism  by  publicists  and  authorities  on  interna 
tional  law  the  world  over,  as  an  extension  of  the  doctrine  of  "con 
tinuous  voyages"  beyond  all  warrant  of  the  law  of  prize,  and  as 
tending  to  establish  an  intolerable  interference,  by  belligerent 
nations,  with  the  lawful  trade  of  neutrals  between  neutral  ports. 
How  truly  it  was  said  by  Mr.  Evarts  in  this  argument  that  "  The 
future  interests  of  the  United  States  imperatively  demand  that 
the  barriers  against  belligerent  pretension,  which  this  case  of  the 
"Springbok"  has  overturned,  should  be  firmly  established  by  the 
judgment  of  this  International  Tribunal,"  was  impressively 
brought  home  when  Great  Britain,  at  the  time  when  the  United 
States  stood  neutral  in  the  European  war,  cited  the  "Springbok" 
decision  to  justify  her  interference  with  the  commerce  between 
neutral  ports,  in  her  attempt  to  cut  off  all  intercourse  with  the 
Central  European  powers. 

Wharton,  in  his  international  law  digest  (III,  404)  has  this  to  say 
of  this  argument,  in  an  editorial  note  discussing  the  decision  of  the 
Supreme  Court:  "It  is  a  matter  of  great  regret,  also,  that  the 
masterly  argument  of  Mr.  Evarts,  before  the  mixed  commission 
afterwards  instructed  to  act  on  this  class  of  claims,  *  *  *  an 
argument  which  is  one  of  the  ablest  expositions  of  international  law 
in  this  relation  which  has  ever  appeared  and  is  recognized  as  such 
by  the  highest  foreign  authority,  had  not  been  delivered  before  the 
Supreme  Court,  so  as  to  have  enabled  that  tribunal  to  become  aware 
of  the  great  gravity  of  the  question  involved. " 

Mr.  Evarts's  argument  was  presented  to  the  Mixed  Commission 
on  British  and  American  claims  arising  out  of  the  Civil  War,  which 


THE  SPRINGBOK  CASE  667 

had  been  established  under  the  Treaty  of  Washington  of  May  8, 
1871.  The  British  Government  prosecuted  the  claim  of  the  owners 
of  the  cargo  of  the  "Springbok"  before  this  commission  and  Mr. 
Evarts  was  retained  by  them  in  the  matter.  An  oral  argument  of 
the  case  was  not  permitted  and  it  was  presented  in  printed  form. 

John  Bassett  Moore,  who  holds  the  chair  of  international  law  in 
Columbia  University  and  has  at  various  times  been  connected  with 
the  State  Department  at  Washington,  wrote  of  this  argument  in 
these  words:  "It  has  never  been  my  good  fortune  to  read  a  better 
argument  in  a  prize  case  and  I  do  not  expect  ever  to  see  a  better 
one.  Each  year  since  I  came  here  (Columbia)  I  have  had  my  stu 
dents  read  it.  No  one  but  a  great  lawyer  with  a  profound  ap 
prehension  of  the  principles  of  international  law  could  have  made 
such  an  argument. " 

ARGUMENT. 

STATEMENT  OF  THE  CASE 

The  barque  "Springbok"  and  her  entire  cargo  were  con 
demned  as  lawful  prize  of  war  to  the  United  States  steamer 
"Sonoma,"  by  decree  of  the  United  States  District  Court 
for  the  Southern  District  of  New  York,  on  the  1st  day  of 
August,  1863. 

The  learned  district  judge,  Betts,  gave,  in  passing  con 
demnation  upon  the  barque  and  her  cargo,  as  the  ground  of 
his  decree, 

That  the  said  vessel,  at  the  time  of  her  capture  at  sea,  was 
knowingly  laden,  in  whole  or  in  part,  with  articles  contraband 
of  war,  with  intent  to  deliver  such  articles  to  the  aid  and  use  of  the 
enemy;  that  the  true  destination  of  the  said  ship  and  cargo  was 
not  to  Nassau,  a  neutral  port,  and  for  trade  and  commerce,  but 
to  some  port  lawfully  blockaded  by  the  forces  of  the  United 
States,  and  with  intent  to  violate  such  blockade;  and  further, 
that  the  papers  of  the  said  vessel  were  simulated  and  false. 
Wherefore  the  condemnation  and  forfeiture  of  the  vessel  and 
cargo  is  declared.  (Proof  for  Claimants,  p.  25.) 


668         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

Thus  it  appears,  vessel  and  cargo  were  condemned  in  the 
District  Court  as  taken  in  delicto  on  a  voyage  planned  and 
prosecuted  with  intent  to  violate  an  existing  blockade. 

Upon  appeal  to  the  Supreme  Court  of  the  United  States 
that  Court  reversed  the  condemnation  of  the  vessel,  and 
held  that— 

Her  papers  were  regular,  and  they  all  showed  that  the  voyage  on 
which  she  was  captured  was  from  London  to  Nassau,  both  neutral 
ports  within  the  definitions  of  neutrality  furnished  by  the  inter 
national  law.  The  papers,  too,  were  all  genuine,  and  there  was 
no  concealment  of  any  of  them  and  no  spoliation.  Her  owners 
were  neutrals,  and  do  not  appear  to  have  had  any  interest  in  the 
cargo  and  there  is  no  sufficient  proof  that  they  had  any  knowledge 
of  its  alleged  unlawful  destination.  The  preparatory  examinations 
do  not  contradict,  but  rather  sustain  the  papers.  (Case  of  the 
"Springbok,"  5  Wall.  21.) 

The  Supreme  Court,  however,  affirmed  the  condemnation 
of  the  cargo  upon  this  conclusion,  as  to  the  ground  of  con 
demnation  : 

Upon  the  whole,  we  cannot  doubt  the  cargo  was  originally 
shipped  with  intent  to  violate  the  blockade;  that  the  owners  of 
the  cargo  intended  that  it  should  be  transshipped  at  Nassau  in 
some  vessel  more  likely  to  succeed  in  reaching  safely  a  blockaded 
port  than  the  Springbok;  that  the  voyage  from  London  to  the 
blockaded  port  was,  as  regarded  the  cargo,  both  in  law  and  in 
intent  of  the  parties,  one  voyage;  and  that  the  liability  to  condem 
nation,  if  captured  during  any  part  of  that  voyage,  attached  to 
the  cargo  from  the  time  of  sailing.  (Ibid.,  pp.  27,  28.) 

Thus  it  appears,  condemnation  passed  finally  upon  the 
cargo,  not  as  taken  in  delicto  during  a  voyage  in  which  the 
vessel  carrying  it  was  to  be  an  agent  of  transportation  with 
intent  to  violate  the  blockade,  but  simply  as  set  in  progress 
(by  and  through  an  innocent  voyage  of  an  innocent  vessel 
to  a  lawful  port)  towards  a  purpose  of  thereafter  obtaining 
transportation,  by  a  voyage  yet  to  be  commenced,  by  some 


THE  SPRINGBOK  CASE  669 

unknown  and  unnamed  guilty  vessel  to  some  unknown  and 
unnamed  blockaded  port. 

View  of  the  facts  and  the  evidence  upon  which  the  Supreme 
Court  drew  the  conclusion  that  the  cargo  was  taken  in  delicto, 
as  lawful  prize,  for  attempt  to  violate  the  blockade: 

I.  The  bills  of  lading  disclosed  the  contents  of  six  hundred  and 
nineteen,  but  concealed  (that  is,  did  not  mention)  the  contents  of 
thirteen  hundred  and  eighty-eight,  of  the  two  thousand  and  seven 
packages  which  made  up  the  cargo.  Like  those  in  the  Bermuda 
case,  they  named  no  consignee,  but  required  the  cargo  to  be 
delivered  to  order  or  assigns.  The  manifest  of  the  cargo  also, 
like  that  in  the  Bermuda  case,  mentioned  no  consignee,  but  de 
scribed  the  cargo  as  deliverable  to  order.  Unlike  those  bills  and 
that  manifest,  however,  these  concealed  the  names  of  the  real 
owners  as  well  as  the  contents  of  more  than  two-thirds  of  the 
packages.  (5  Wallace,  p.  24.) 

The  injurious  inference  and  the  damnatory  imputation 
from  this  so-called  "concealing"  the  contents  of  the  packages 
is  thus  stated  by  the  court: 

The  true  reason  must  be  found  in  the  desire  of  the  owners  to  hide 
from  the  scrutiny  of  the  American  cruisers  the  contraband  char 
acter  of  a  considerable  portion  of  the  contents  of  those  packages. 
(Ibid.,  p.  25.) 

In  the  opinion  of  the  Court  the  basis  for  injurious  infer 
ence  and  damnatory  imputation  from  the  so-called  "con 
cealing"  the  names  of  the  owners  of  the  cargo,  is  not  found 
in  the  papers  of  the  prize  or  in  the  preparatory  proofs  in  the 
cause,  but  solely  in  papers  invoked  at  the  hearing,  from  the 
case  of  the  "Gertrude"  and  from  the  case  of  the  "Stephen 
Hart."  The  only  fact  acquired  from  the  invocation  of  the 
papers  in  the  case  of  the  "Gertrude"  was,  that  Begbie,  a 
claimant  of  the  cargo  of  the  "Springbok,"  was  owner  of  the 
"Gertrude,"  and  the  only  fact  acquired  from  the  papers  of 
the  "Stephen  Hart"  was  that  S.  Isaac,  Campbell  and  Co., 


670         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

also  claimants  of  the  cargo  of  the  "Springbok,"  were  the 
owners  of  the  cargo  of  the  "Stephen  Hart."  Upon  these 
facts  thus  presented  to  the  Court,  the  omission  of  the  names 
of  these  owners  of  the  cargo  of  the  "Springbok"  gives  rise 
to  this  damnatory  conclusion  from  such  omission: 

Clearly  the  true  motive  of  this  concealment  must  have  been  the 
apprehension  of  the  claimants,  that  the  disclosure  of  their  names 
as  owners  would  lead  to  the  seizure  of  the  ship  in  order  to  the 
condemnation  of  the  cargo.  (Ibid.,  p.  25.) 

But  the  Court  hold  expressly  that — 

"These  concealments  do  not  warrant  condemnation"  of  the  cargo, 
and  broadly  maintain  that  the  cargo  must  be  restored  to  the  claim 
ants  "if  the  real  intention  of  the  owners  was  that  the  cargo  should 
be  landed  at  Nassau,  and  incorporated  by  real  sale  into  the  common 
stock  of  the  island."  (Ibid.,  p.  25.) 

II.  The  items  of  fact  or  surmise  tending  to  a  conclusion 
of  a  plan  of  transshipment  at  Nassau  into  a  blockade-runner 
are  gathered  and  combined  by  the  Court,  as  follows: 

(a)  "The  consignment,  shown  by  the  bills  of  lading  and 
the  manifest,  was  to  order  or  assigns."     This  the  Court 
regarded  as  negativing  the  intent  of  sale  at  Nassau,  "for  had 
such  sale  been  intended,  it  is  most  likely  that  the  goods 
would  have  been  consigned  for  that  purpose  to  some  estab 
lished  house  named  in  the  bills  of  lading." 

"This  inference  is  regarded  by  the  Court  as  strengthened,"  from 
the  charterer's  instructions  to  the  master  of  the  "Springbok" 
"to  report  to  B.  W.  Hart,  the  agents  of  the  charterers,  at  Nassau, 
and  receive  his  instructions  as  to  the  delivery  of  the  cargo.  The 
property  in  it  was  to  remain  unchanged  upon  delivery.  The 
agent  was  to  receive  it  and  execute  the  instructions  of  his  prin 
cipals."  (Ibid.,  p.  26.) 

(b)  The  Court  then  undertake  to  "collect"  what  these 
instructions  were  "from  the  character  of  the  cargo." 

The  characteristics  of  the  cargo  from  which  the  unknown 


THE  SPRINGBOK  CASE  671 

instructions  for  its  disposal  at  Nassau  are  to  be  collected, 
are  the  presence  of  "arms  and  munitions  of  war,"  in  the 
shape  of  "sixteen  dozen  swords  and  ten  dozen  rifle  bayonets, 
and  the  forty-five  thousand  navy  buttons  and  the  one  hun 
dred  and  fifty  thousand  army  buttons,"  and  of  "quasi  con 
traband,"  in  the  shape  of  "seven  bales  of  army  cloth  and  the 
twenty  bales  of  army  blankets . ' '  The  conclusion  drawn  from 
these  features  of  the  cargo  is  thus  stated: 

We  cannot  look  at  such  a  cargo  as  this  and  doubt  that  a  consider 
able  portion  of  it  was  going  to  the  rebel  States,  where  alone  it 
could  be  used;  nor  can  we  doubt  that  the  whole  cargo  had  one 
destination.  (Ibid.,  p.  27.) 

(c)  From  "ultimate  destination"  of  a  considerable  por 
tion  of  this  cargo  for  consumption  in  the  rebel  States,  thus 
arrived  at,  the  Court  then  reasons  out  the  course  by  which 
the  whole  cargo,  as  a  unit  was  to  get  there,  as  follows: 

Now  if  this  cargo  was  not  to  be  carried  to  its  ultimate  destina 
tion  by  the  "Springbok"  (and  the  proof  does  not  warrant  us  in 
saying  that  it  was),  the  plan  must  have  been  to  send  it  forward  by 
transshipment.  And  we  think  it  evident  that  such  was  the  purpose. 

The  Court  find,  also,  support  for  this  inference  from  the 
invoked  proofs,  showing  (1)  "that  Isaac,  Campbell  and  Co. 
had  before  supplied  military  goods  to  the  rebel  authorities 
by  indirect  shipments,  and  (2)  that  Begbie  was  owner  of  the 
'Gertrude'  and  engaged  in  the  business  of  running  the 
blockade."  (Ibid.,  p.  27.) 

(d)  The  Court  add  an  element  of  further  support  to 
their  conclusion,  as  follows : 

If  these  circumstances  were  insufficient  grounds  for  a  satisfac 
tory  conclusion,  another  might  be  found  in  the  presence  of  the 
"Gertrude"  in  the  harbor  of  Nassau,  with  undenied  intent  to  run 
the  blockade,  about  the  time  when  the  arrival  of  the  "Springbok** 
was  expected  there.  It  seems  to  us  extremely  probable  that  she 
had  been  sent  to  Nassau  to  await  the  arrival  of  the  "Springbok," 


672         SPEECHES   OF  WILLIAM  MAXWELL  EVARTS 

and  to  convey  her  cargo  to  a  belligerent  and  blockaded  port,  and 
that  she  did  not  so  convey  it,  only  because  the  voyage  was  inter 
rupted  by  the  capture.  (Ibid.,  p.  27.) 

(e)  The  only  further  makeweight  in  aid  of  these  damna 
tory  surmises,  suggested  by  the  Court,  is  "the  very  remark 
able  fact,"  that  the  claimants  never  applied  for  leave  to 
take  further  proof,  and  that  the  claims,  as  filed,  were  sworn 
to  by  the  agent  and  proctor  of  the  claimants,  and  not  by 
them  personally.  (Ibid.,  p.  27.) 

The  British  subject,  whose  valuable  cargo  had  been  con 
fiscated  by  this  final  sentence  of  the  Supreme  Court  of  the 
United  States,  upon  the  grounds  of  fact  and  of  public  law 
avowed  by  that  court  to  be  the  basis  of  its  judgment, 
represented  to  Her  Majesty's  Government  the  injury  and 
injustice  which  they  deemed  themselves  to  have  suffered  at 
the  hands  of  the  prize  jurisdiction  in  the  court  of  last  resort, 
and  asked  for  its  interposition  with  the  Government  of  the 
United  States  for  the  relief  of  the  injury,  and  the  correction 
of  the  injustice  they  had  suffered. 

These  British  subjects  supported  their  representation  to 
Her  Majesty's  Government  by  the  professional  opinion  of 
two  very  eminent  English  lawyers  (Mr.  Mellish,  now  Lord 
Justice  of  Appeal  in  the  High  Court  of  Chancery,  and  Mr. 
Vernon  Harcourt),  pointing  out  certain  alleged  misconcep 
tions  of  evidence  and  errors  of  law  and  fact  which  exhibited 
themselves  in  the  final  sentence  of  the  prize  court. 

Her  Majesty's  Government  presents  the  case  for  redress 
to  this  International  Tribunal,  organized  and  sitting  with 
plenary  authority  to  that  end,  under  the  provisions  of  the 
Treaty  of  Washington.  (Memorial  of  Claimants;  Opin 
ion  of  Counsel,  pp.  30-35;  Memorial  of  British  Govern 
ment;  Proof  for  Claimants,  pp.  39-44.) 

View  of  the  principal  matters  of  proof  imported  into  the 
case  before  the  mixed  Commission,  and  of  their  relation,  on 


THE  SPRINGBOK  CASE  673 

the  one  side  and  the  other,  to  the  matter  in  evidence  before  the 
prize  courts. 

I.  The  claimants  have  made  full  proof  that  at  the  time 
the  voyage  of  the  "Springbok"  was  planned,  and  when  it 
would  have  brought  her  to  Nassau,  there  was  a  market  at 
Nassau  for  all  the  various  kinds  of  merchandise  which  made 
up  the  cargo  of  that  vessel.  The  proof  includes  evidence  of 
numerous  business  houses  established  there  offering  all  these 
articles,  by  public  advertisement  in  the  newspapers,  for  sale 
by  auction,  as  well  as  in  ordinary  trade.  This  proof  is  made 
by  the  production  of  the  original  newspapers  of  Nassau  filed 
with  the  Mixed  Commission,  and  pertinent  extracts  there 
from  are  appended  to  the  claimant's  petition.  (Memorial, 
pp.  71-86.) 

Besides  this,  the  claimants  have  invoked  the  proofs  perti 
nent  to  this  topic  from  two  other  cases  pending  before  the 
Mixed  Commission,  to  wit,  the  case  of  John  C.  Rahming  vs. 
The  United  States,  No.  7,  and  the  case  of  Joseph  Eneas  vs. 
The  United  States,  No.  126.  From  these  proofs  the  magni 
tude,  variety,  and  activity  of  this  market  of  Nassau  for  all 
the  kinds  of  goods  which  make  up  the  cargo  of  the  "Spring 
bok"  abundantly  appear. 

Upon  the  cross-examination  of  John  Norris  Sleddon,  a 
witness  examined  in  Liverpool  in  behalf  of  the  United  States, 
the  claimants  have  proved  this  condition  of  the  market  at 
Nassau  very  distinctly. 

Cross-question  27:  Has  not  a  large  business  been  for  many 
years  carried  on  between  Great  Britain  and  Nassau,  consisting  of 
the  export  of  all  kinds  of  merchandise  from  the  former  to  the  latter 
place?  Answer:  A  large  business  was  carried  on  during  the  war 
but  before  and  since  the  business  is  by  no  means  large. 

Cross-question  29:  Did  you  at  any  time  during  the  war  see 
any  newspapers  which  had  been  published  at  Nassau?  Answer: 
Yes;  I  saw  them  regularly. 

Cross-question  30:    Did  not  these  newspapers  contain  many 


45 


674         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

advertisements  relating  to  the  sale  of  all  kinds  of  merchandise,  by 
auction  or  otherwise?  Answer:  Yes.  (Deposition  for  Defense, 
p.  25.) 

It  is  not  too  much  to  claim  for  the  proofs  on  this  point 
that  they  make  a  commercial  adventure  which  should  des 
patch  a  cargo,  assorted  as  that  of  the  "Springbok"  was,  for 
landing  and  sale  in  the  market  of  Nassau  as  natural  and 
probable  a  project  as  it  was  safe  and  legal.  Every  indica 
tion,  therefore,  in  the  lading  of  a  vessel  for  that  port  which 
should  suggest  its  probable  "ultimate  destination"  as  look 
ing  to  its  consumption  in  the  rebel  States,  so  far  from  raising 
a  doubt  of  its  being  salable  and  meant  for  sale  in  the  market 
of  Nassau,  would  point  directly  to  that  conclusion.  The  mo 
ment,  under  this  proof  of  the  market  at  Nassau,  it  is  conceded 
that  the  "Springbok"  was  bound  to  that  port  as  the  end  of 
her  voyage,  and  was  there  to  unlade  her  cargo,  all  suspicions 
or  surmises  in  regard  to  further  projects  for  any  parts  of  the 
cargo,  from  their  character,  are  satisfied  by  the  demand  of 
the  Nassau  market  for  such  merchandise  for  its  own  enter 
prises  projected,  made  up  and  prosecuted  from  thence.  (2-316.) 

II.  The  claimants   make  full  proof,   by  unexceptional 
witnesses,   of  the   absolute   regularity   and   conformity  to 
every  day  usage,  of  the  bills  of  lading,  manifest,  and  form  of 
consignment  of  all  parts  of  the  cargo  of  the  "Springbok." 
(Proof  for  Claimants,  p.  33.) 

III.  The   claimants   produce   in   evidence   the   various 
original  policies  of  insurance,  eleven  in  number,  taken  out 
by  them  on  the  cargo  of  the  "Springbok,"  all  exhibiting  the 
risk  insured  as  beginning  at  London  and  ending  at  Nassau. 
(Memorial  of  Claimants,  pp.  35-71.) 

IV.  The  claimants  produce  the  deposition  of  B.  W.  Hart, 
to  the  whole  of  which  the  most  careful  attention  of  the  com 
mission  is  respectfully  asked. 

This  deposition  shows  that  the  cargo  of  the  "Springbok" 
was  consigned  to  Hart  for  sale  in  Nassau  and  remittance  of 


THE  SPRINGBOK  CASE  675 

proceeds,  and  as  a  shipment  of  part  of  a  joint  account  adven 
ture  for  that  market,  which  covered  the  cargoes  of  two  other 
vessels  which  arrived  and  were  sold  by  Hart  in  Nassau. 
The  cargo  of  the  "Springbok,"  in  anticipation  of  her  arrival, 
was  put  upon  the  market  in  Nassau,  and  an  advertisement 
prepared  for  the  papers,  and  some  portion  of  the  cargo  was 
actually  sold  "to  arrive,"  including  the  two  boxes  marked 
buttons  mentioned  in  the  opinion  of  the  Supreme  Court. 
The  letter  of  consignment  of  the  three  cargoes  was  received 
in  due  course  of  mail  by  way  of  New  York,  and  was  as 
follows : 

71  JERMYN  STREET,  LONDON, 

December  19,  1862. 
B.  W.  HART,  ESQ.,  Nassau. 

Dear  Sir:  By  this  mail  we  send  you  duplicates  of  invoices  of 
shipments  on  joint  account  of  ourselves,  T.  Stirling  Begbie,  Esq., 
and  Messrs.  Moses  Brothers,  per  "Aries,"  "Springbok,"  and 
"Justitia."  Duplicate  bills  of  lading  are  enclosed.  We  hope 
these  goods  will  arrive  to  a  good  market,  realize  good  prices,  and 
that  you  will  be  able  to  remit  to  us  without  loss  of  time,  money  being 
much  wanted  here  at  present. 

(The  bank  rate  was  rising.) 

The  deposition  of  Mr.  Hart  shows  that  the  cargo  of  the 
"Justitia"  arrived  at  Nassau  (having  been  transshipped  at 
Bermuda)  in  January,  1863;  was  sold  in  the  market  there, 
and  the  proceeds  remitted,  and  that  the  "Aries"  sailed 
from  England  November  28,  1862,  and  arrived  at  Nassau 
January  20,  1863,  when  her  cargo  also  was  there  sold  by 
Hart. 

The  deposition  also  proves  the  valuation  of  the  cargo  of 
the  "Springbok"  as  made  at  Nassau  in  May,  1863,  and, 
according  to  the  market  prices  current  in  February,  1863, 
amounting  to  £66,378  11s.  lid.  (Deposition  of  Hart;  Proof 
for  Claimants,  pp.  33,  38.) 

Upon  this  deposition  of  Hart  it  is  impossible  to  avoid  the 


676         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

conclusion  that  too  rash  a  substitution  of  surmise  for  evi 
dence,  and  of  conjecture  for  facts,  led  the  Supreme  Court 
away  from  the  true  function  of  the  prize  jurisdiction, 
dealing  only  with  the  voyage  intercepted,  and  involved  it  in  a 
condemnation  of  the  system  of  trade  of  which  Nassau  had 
become  the  entrepot. 

V.  Upon  the  proofs  invoked  by  the  claimants  from  the 
case  of  John  Riley  vs.  The  United  States,  No.  442,  before  the 
Mixed  Commission  (being  the  case  of  the  barque  "Spring 
bok"),  an  inspection  of  the  documents  exhibits  the  singu 
lar  error  of  fact  with  which  the  Supreme  Court  started  in 
its  inspection  of  this  cargo  for  evidence  of  guilt.  What  the 
Supreme  Court  calls  "arms"  and  counts  as  "sixteen  dozen 
swords"  and  "ten  dozen  rifle  bayonets,"  upon  the  actual 
proofs  in  the  prize  cause  itself,  turn  out  to  have  been  one 
sample  case,  containing  one  dozen  cavalry  swords  and  one 
dozen  rifle  bayonets.  (Case  of  Riley  vs.  U.  S.,  page  156; 
Case  A  1406. 

The  depositions  of  Thomas  May,  Edward  Russel  Cummins 
and  Thomas  Stirling  Begbie,  forming  part  of  the  "Deposi 
tions  for  Claimant"  in  case  of  Riley  vs.  United  States,  and 
found  at  pages  1  to  11,  exhibit  the  perfectly  neutral  char 
acter  of  the  voyage  and  cargo  of  the  "Springbok." 

An  examination  of  the  "marshal's  return"  to  the  prize 
court  of  the  sale  of  the  cargo  of  the  "Springbok"  exhibits 
the  utter  insignificance  of  what  the  Supreme  Court  regarded 
as  contraband,  or  quasi  contraband,  and  suffered  to  carry 
such  widespread  infection  through  as  inoffensive  a  cargo  of 
dry  goods,  haberdashery,  and  groceries  (see  catalogue  of 
sale  on  file  with  Commission),  as  ever  crossed  the  ocean, 
and  to  impart  such  disastrous  weight  in  determining  the 
injurious  surmises  under  which  the  condemnation  of  the 
entire  cargo  passed.  ;;.,.rf 

It  will  be  found  that  the  proceeds  of  the  "swords  and 
bayonets"  were  but  $35,  and  of  the  "military  and  naval 


THE  SPRINGBOK  CASE  677 

buttons"  but  $235,  showing  for  "arms  and  munitions  of 
war,"  in  the  language  of  the  Supreme  Court,  but  $270  out 
of  gross  proceeds  of  entire  cargo  of  nearly  $250,000. 

Again:  if  the  proceeds  of  the  quasi  contraband — the 
so-called  army  blankets,  etc.,  and  the  ten  kegs  of  saltpetre 
be  added — the  whole  will  come  to  less  than  one  per  cent 
of  the  proceeds  of  cargo  at  the  marshal's  sale. 

VI.  The  claimant's  proofs  displace  entirely  the  theory 
upon  which  the  Supreme  Court  satisfied  itself  that  the 
steamer  "Gertrude"  was  to  receive  the  cargo  of  the  "Spring 
bok,"  the  transshipment  of  which  the  Court  imagined  she 
had  been  sent  to  receive,  and  was  awaiting  in  the  port  of 
Nassau,  when  the  capture  of  the  "Springbok"  disappointed 
the  project. 

The  proofs  show  that  on  the  third  day  of  February,  1863, 
when  the  "Springbok"  was  captured  off  Nassau,  the  "Ger 
trude"  was  lying  off  Queenstown,  in  Ireland,  having  arrived 
there  from  Greenock,  January  31. 

The  log  of  this  voyage  and  the  deposition  of  James 
Raison,  master  of  the  "Gertrude,"  established  these  facts 
beyond  controversy.  (Claimants'  Memorial,  pp.  17  to  19.) 

The  proofs  invoked  from  the  case  of  the  "Gertrude" 
upon  the  trial  of  the  "Springbok"  showed  that  the  "Ger 
trude"  received  her  lading  at  Nassau  on  the  eighth  day  of 
April,  and  there  is  no  evidence  of  her  earlier  presence  in 
that  port.  (Case  of  Riley  vs.  U.  S.,  pp.  171-2.) 

PROOFS  ADDUCED  BY  THE  UNITED  STATES. 

I.  The  United  States  examined,  on  due  notice,  one  witness, 
John  Norris  Sleddon,  whom  the  claimants  duly  cross-ex 
amined. 

The  only  purpose  or  effort  of  this  evidence  is  to  attempt 
to  show  that  T.  Stirling  Begbie,  one  of  the  claimants  of  the 
cargo  of  the  "Springbok,"  had  been,  or  had  the  reputation 
of  having  been,  connected  with  blockade-running  projects 


678         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

and  voyages.  These  trading  enterprises  with  which  the 
witness  attempts  to  connect  Mr.  Begbie  were  all  a  year  or 
more  later  in  date  than  this  voyage  of  the  "Springbok"  The 
witness  is  not  asked  about  "Moses  Bros.,"  and  knows  noth 
ing  about  "S.  Isaac,  Campbell  &  Co.,"  the  other  claimants, 
in  this  connection. 

All  that  the  witness  contributes  to  the  case  respecting  the 
"Springbok"  or  her  voyage  is  as  follows: 

Cross-question  51 :  Do  you  of  your  own  knowledge  know  any 
thing  of  the  cargo  of  the  "Springbok,"  or  of  the  circumstances 
under  which  it  was  shipped  from  London?  Answer:  Of  my  own 
knowledge  I  do  not.  I  simply  know  of  the  transaction  by  having 
heard  Mr.  Begbie  speak  of  it  during  the  war. 

Cross-question  52:  Can  you  tell  when  you  first  saw  Mr.  Begbie? 
Answer:  It  would  be  about  the  latter  end  of  1863.  (Deposition 
for  Defence,  pp.  13,  14.) 

The  United  States  permit  this  witness  to  sum  up  his  knowl 
edge  and  wisdom  about  this  case  as  follows : 

Re-direct  22 :  Do  you  wish  to  make  any  special  remark  in  regard 
to  the  "Springbok"  or  her  cargo?  With  respect  to  the  "Spring 
bok"  herself,  that  is,  the  vessel,  I  have  no  doubt,  from  my  knowl 
edge  of  the  trade,  that  Nassau  or  Bermuda  was  her  ultimate  des 
tination,  and  I  have  no  idea  that  she  ever  intended  to  run  the  block 
ade;  but  with  respect  to  the  cargo,  from  my  knowledge  of  Mr. 
Begbie' s  connection  with  blockade-running,  I  should  judge  that  it 
was  intended  for  the  blockade  ports,  whether  sold  or  unsold  at 
Nassau  or  Bermuda. 

It  is  apparent  that  on  this  estimate  of  the  case  against 
the  cargo,  no  condemnation  could  be  asked,  for  the  sale  in  the 
market  at  Nassau  seemed  to  the  witness  as  probable  a  project 
of  these  parties  as  any  other. 

II.  The  United  States  have  produced,  under  the  simple 
authentication  of  the  certificate  of  "Geo.  M.  Robeson,  act 
ing  Secretary  of  War,"  dated  April  7,  1873,  what  purports 
to  be  copies  of  letters  and  accounts,  being  "extracts  from  the 


THE  SPRINGBOK  CASE  679 

records  of  the  so-called  Confederate  States  of  America,  cap 
tured  by  the  forces  of  the  United  States,  and  now  being  in 
the  custody  of  this  Department;  the  extracts  being  all  that 
pertains  to  the  case  of  S.  Isaac,  Campbell  &  Co.,  in  the 
documents  from  which  they  are  made." 

These  papers  covered  a  period  from  January,  1862,  to 
July,  1864,  that  is,  for  a  period  beginning  a  year  before  the 
voyage  of  the  "Springbok"  commenced,  and  ending  eighteen 
months  after  the  capture. 

The  object  and  bearing  of  this  evidence,  in  favor  of  the 
United  States,  are  simply  to  show  the  range  and  extent  of 
the  commercial  undertakings  of  the  house  of  S.  Isaac,  Camp 
bell  &  Co.,  of  London,  in  supplying  the  wants  from  foreign 
trade  of  the  people  and  authorities  of  the  rebel  States.  The 
papers,  undoubtedly,  tend  to  show  a  commercial  interest  in 
favor  of  the  "Confederacy,"  active  and  open,  just  as  other 
prominent  London  houses  espoused  and  aided,  commercially, 
and  much  more  extensively,  the  other  belligerent  in  the  pend 
ing  war. 

Upon  what  principles  this  evidence,  thus  certified,  is  sup 
posed  to  carry  authority  for  its  admission  in  this  tribunal 
of  international  authority,  is  not  readily  perceived.  The 
claimants  suppose  themselves  at  least  to  have  been  entitled 
to  notice  and  cross-examination,  and  the  production  of  coun 
tervailing  evidence  from  the  same  public  repository. 

But  the  real  importance  of  this  great  draught  of  evidence, 
thus  fished  up,  is,  from  the  unlimited  exploration  of  all  the 
dealings  of  this  firm  and  any  of  its  agents  or  correspondents, 
and  of  the  agents  and  correspondents  of  the  commercial  or 
public  interests  of  the  people  or  Government  of  the  rebel  States, 
to  demonstrate  by  the  most  exhaustive  negative  imaginable,  that 
the  voyage  and  cargo  of  the  "Springbok"  were  not  embraced  or 
touched  by  any  of  these  dealings  thus  explored,  and  thus  are 
placed  above  suspicion  as  a  mere  commercial  consignment  to  the 
market  of  Nassau. 


680         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

III.  The  United  States  have  also  included  in  the  same 
"Proofs  for  Defence,"  and  covered  by  a  similar  certification, 
a  contract  of  "T.  Stirling  Begbie,"  bearing  no  date,  but 
evidently  made  after  December,  1863,  for  providing  steamers 
(to  run  to  blockaded  ports  presumptively),  and  some  appurte 
nant  transactions  not  very  definite  or  important.  (Proofs 
for  Defence,  pp.  83-90.) 

The  same  observations  apply  to  the  proofs,  thus  intro 
duced,  in  respect  to  the  claimant  Begbie  as  are  made  above 
in  respect  of  the  claimants,  S.  Isaac,  Campbell  &.  Co. 

We  have  thus  a  complete  exhaustion  of  the  transactions  of  all 
the  claimants,,  deemed  questionable,  and  a  demonstration  that  the 
voyage  and  cargo  of  the  ''Springbok"  lay  outside  of,  and  are  not 
touched  by,  the  unneutral  dealings. 

ARGUMENT 

Importance  of  the  case. 

The  case  of  the  "Springbok,"  as  it  stands  upon  the  list  of 
the  Mixed  Commission,  and  is  to  be  determined  by  their 
judgment,  is  justly  considered  by  the  publicists  of  the  two 
nations  for  the  settlement  of  whose  reciprocal  grievances, 
arising  during  the  period  of  the  late  civil  war,  this  interna 
tional  tribunal  has  been  established,  and,  not  less,  by  the 
publicists  of  Continental  Europe,  as  of  capital  importance. 

In  the  first  place,  the  case  as  a  prize  cause,  to  be  passed 
upon  according  to  the  procedure  and  principles  of  that  spe 
cial  jurisdiction,  was  both  novel  and  interesting.  Accordingly 
it  excited  much  attention  from  learned  authors  and  eminent 
diplomatists,  while  it  was  sub  judice  in  the  prize  court  of  the 
first  instance,  and  far  greater  when  it  reached  the  Supreme 
Court  of  the  United  States,  of  so  great  authority  on  the  law 
of  nations,  where  it  was,  as  a  mere  question  of  prize,  finally 
determined. 

But  when  the  actual  judgment  of  the  Supreme  Court  of 
the  United  States  was  announced,  carrying  the  condemnation 


THE  SPRINGBOK  CASE  681 

to  the  extent,  and  supporting  it  upon  the  principles  of  law 
and  of  evidence  which  that  judgment  declared,  the  interest 
of  publicists  and  of  statesmen  in  the  case  and  the  question 
was  quickened  and  extended. 

The  extreme  pretentious  of  belligerent  right  to  subjugate 
neutral  commerce  to  its  necessities,  which  this  condemnation 
imported,  and  the  wide  influence  upon  neutral  commerce  in 
time  of  war  which  was  to  follow,  if  this  new  instance  of 
prize  law,  as  declared  by  the  Court  of  a  belligerent,  should 
be  accepted  by  the  great  maritime  powers  as  regulating  the 
duties  of  neutrals  in  the  future,  made  the  case  one  of  atten 
tive  consideration  and  responsible  discussion  with  the  prin 
cipal  Cabinets  of  Europe,  as  well  as  of  representation  on  the 
part  of  Her  Majesty's  Government  to  that  of  the  United 
States. 

It  may  be  considered  as  a  fortunate  circumstance  that  the 
dispersed  protracted  debate  to  which,  otherwise,  this  whole 
subject  would  have  been  destined,  without  any  prospect  of 
definite  solution  until,  unhappily,  the  prize  jurisdiction  of 
some  maritime  power  should  again  be  invoked  to  pass  upon 
it,  is  so  quickly  superseded  by  a  submission  of  the  contro 
verted  public  doctrine  to  a  tribunal  of  the  credit  and  dignity, 
under  the  law  of  nations,  of  this  Mixed  Commission.  This 
delegated  authority  represents  the  great  commercial  nations 
of  Great  Britain  and  the  United  States,  and  of  United  Italy, 
whose  great  share  in  the  past  history  of  the  world's  public 
law  and  of  the  world's  commerce  may  yet  be  rivaled  in  the 
growing  fortunes  of  her  new  kingdom. 

The  claimants  of  the  condemned  cargo  of  the  "Springbok" 
will  be  entitled  to  restitution  and  indemnity  from  the  United 
States  in  case  the  Mixed  Commission  shall  be  satisfied  of  either 
of  the  three  following  propositions: 

I.  That  the  actual  judgment  of  the  Supreme  Court  of  the 
United  States  has  disregarded  the  essential  principles  of  the 


682         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

prize  jurisdiction  (by  whose  adjudication,  and  not  other 
wise,  do  neutral  nations  submit  to  have  the  fortunes  of  their 
subjects'  maritime  property  even  prima  facie  determined), 
in  its  condemnation  of  the  cargo  of  the  "Springbok,"  irres 
pective  of  any  conclusion  as  to  what  the  probable  fate  of  the 
cargo  would  have  been,  after  a  trial  in  which  the  principles  of 
the  prize  jurisdiction  had  been  properly  adhered  to. 

In  other  words,  the  function  of  this  tribunal  is  to  restore  the 
property  if  not  properly  condemned  by  the  prize  court — not  to 
revive  the  prize  jurisdiction  and  recondemn  the  property;  or, 

II.  That,  upon  the  facts  of  the  case,  as  apparent  upon  the 
trial  of  the  prize  cause  and  made  the  basis  of  the  condemna 
tion  by  the  Supreme  Court,  there  was  no  adequate  ground 
for  the  conclusions  drawn  therefrom  by  the  Court  to  the 
condemnation  of  the  cargo;  or, 

III.  That,  upon  the  facts  of  the  case,  upon  the  whole 
proofs  as  now  presented  to  the  Mixed   Commission,  the 
judgment  of  the  Supreme  Court  is  shown  to  have  been 
erroneous  in  its  misconception  or  misconstruction  of  facts,  in 
its  adoption  of  conjectures,  now  shown  to  be  baseless,  in 
place  of  awaiting  proofs,  or  in  its  acceptance  of  false  rules 
of  guilt,  in  place  of  the  true  doctrines  of  the  law  of  nations, 
upon  which  the  question  of  guilt  or  innocence   is   deter- 
minable. 

General  principles  of  the  prize  jurisdiction  which  need  to  be 
considered: 

I.  As  the  ownership  of  both  vessel  and  cargo,  and  the 
scheme  and  conduct  of  the  voyage  and  its  commerce  (what 
ever  the  latter  may  be  held  to  have  included  of  ultimate 
destination  in  its  project),  were  wholly  British,  it  is  manifest 
that  the  limits  of  all  possible  discussion  in  the  case  must  be 
confined  to  the  question  whether  the  actual  interference  with 
the  said  voyage  and  commerce,  and  the  confiscation  of  the 
whole  cargo  by  the  United  States,  one  of  the  belligerents, 


THE  SPRINGBOK  CASE  683 

was  within  the  submission  of  neutral  nations  of  the  freedom 
and  inviolability  of  their  maritime  commerce  to  the  exigen 
cies  of  belligerent  right.  If  in  the  deliberate  and  enlightened 
judgment  of  this  tribunal  it  shall  be  so  held,  then  belligerent 
right,  and  neutral  subjection  to  it,  will  have  received  an 
authentic  exposition  the  wide  consequences  of  which  it 
would  be  difficult  to  overestimate.  If,  on  the  other  hand, 
this  tribunal  shall  reject  this  pretension  and  extension  of 
belligerent  right,  as  beyond  the  warrant  of  the  law  of  nations, 
this  excess  of  belligerent  power  will  be  condemned  as  such, 
and,  instead  of  its  spreading  its  evil  example  in  the  future,  will 
become  a  barrier  against  future  attempts  upon  that  just 
liberty  of  neutral  commerce  which  is  the  great  interest  that 
civilization  and  morality  oppose  to  the  passions  and  cupidity 
of  maritime  warfare. 

II.  The  recognized  belligerent  right  to  pursue  the  enemy's 
commerce  upon  the  high  seas,  and  the  repugnant  neutral 
right  to  maintain  its  commerce  upon  the  high  seas  unaffected 
by  a  warfare  to  which  it  is  not  a  party  and  should  not  be  a 
prey,  have  brought  about,  in  the  interests  of  peace  and  in 
recognition  of  the  necessities  of  belligerents,  a  certain  degree 
and  measure  of  concession  on  the  part  of  neutrals  to  the  ex 
igencies  of  the  war,  of  which,  not  transcended,  they  will  bear 
the  molestation  without  resentment. 

For  the  purposes  of  the  present  discussion,  the  adjustment 
of  this  conflict  between  belligerent  and  neutral  rights  and 
interests,  which  constitutes  the  law  of  nations  on  this  sub 
ject,  may  be  stated  as  follows: 

(a)  Enemy  property,  as  such,  and  without  other  feature 
or  inquiry,  being  exposed  to  capture  or  destruction  by  the 
hostile  power,  and  neutral  property,  as  such  simpliciter, 
being  absolutely  exempt  from  capture  or  destruction  by 
either  belligerent,  neutrals  consent  that  the  verification  of 
the  character  of  the  property,  as  being  neutral  or  belligerent, 
shall  be  submitted  to  by  neutrals,  by  visitation  and  search 
at  sea. 


684         SPEECHES  OP  WILLIAM  MAXWELL  EVARTS 

(b)  Further  interference   with  the  voyage  or  property, 
neutrals  do  not  permit,  unless  by  the  visitation  and  search, 
and  from  what  is  then  and  there  disclosed  respecting  the 
voyage  and  property,  some  fault  or  defect  in  the  enterprise, 
as  really  neutral,  exhibits  itself  to  the  visiting  cruiser.     In 
that  case,  and  in  that  case  only,  neutrals  permit,  not  confisca 
tion  or  destruction,  or  the  least  spoliation  of  property  or 
molestation  of  the  ship's  company,  but  capture  and  submis 
sion  to  the  prize  jurisdiction  for  its  more  deliberate  examina 
tion,  and  more  competent  decision. 

(c)  Neutrals  require  that  the  prize  investigation  shall  be 
limited  to  the  evidence  that  the  voyage,  vessel,  and  ship's 
company  supply,  and  to  the  issue  whether  the  capture  was 
warranted  by  what  that  evidence  discloses;   and  this  condi 
tion  of  the  prize  investigation  is  not  a  question  of  form, 
practice,  or  procedure,  but  an  essential  limitation  of  the  sub 
mission  of  neutrals  in  the  degree  and  nature  of  the  interfer 
ence  with  their  commerce  that  they  will  tolerate. 

The  moment  you  depart  from  this  vital  principle  of  the 
prize  jurisdiction,  to  wit:  that  the  capture  is  to  be  judged  of 
as  it  was  made,  and  on  the  evidence  on  which  it  was  made, 
and  the  captors  acquitted  or  condemned  in  damages  or  costs, 
and  the  belligerent  nation  held  to  accountability  by  the 
offended  neutral  according  to  the  facts  as  appearing  on  the 
capture  and  the  evidence  of  the  prize  itself,  you  subject 
neutral  commerce  to  an  unchecked  and  speculative  cupidity 
of  captors,  and  to  delays  and  miscarriages  of  visitation  and 
search  in  Court  for  suspicion,  and  of  remote  and  crippled 
litigation  to  establish  guilt  or  innocence,  by  imputed  or  ex 
traneous  evidence,  which  neutrals  never  have  submitted  to, 
and  never  can  tolerate. 

(d)  The  practical  maintenance  of  this  great  safeguard  of 
neutral  commerce  against   speculative  or  hopeful  capture 
(upon  the  calculation  that  something  may  turn  up  to  justify 
it  and  make  it  gainful),  and  against  practices  upon  the  prize 


THE  SPRINGBOK  CASE  685 

court  in  the  way  of  simulated  or  specious  evidence,  or 
against  the  Court's  own  unchecked  surmises  or  imaginative 
ingenuity,  is  secured  by  the  firm  and  undeviating  rule  of 
the  prize  courts  never  to  admit  further  proof  as  part  of  the 
original  inquiry,  never  to  admit  it  upon  the  motives  or  the 
interests  of  the  captors  or  the  claimants,  but  always  to  intro 
duce  it,  if  at  all,  upon  and  for  a  resolution  of  the  difficulties 
which  the  primary  evidence  itself  raises,  and  for  the  clearing 
of  which,  for  the  Court's  conscience  in  the  adjudication,  and 
in  the  mere  motive  of  assurance  in  its  justice,  it  seeks  for 
light,  till  then  forbidden. 

Accordingly,  further  proof  is  never  admitted  to  raise  a 
doubt,  nor,  on  the  other  hand,  is  a  doubt,  difficulty,  specula 
tion,  or  surmise,  which  the  primary  proof  raises  in  the  mind 
of  the  court  ever  sufficient  to  draw  or  sustain  any  other  deter 
mination  of  the  matter  in  hand,  than  to  order  further  proof. 
An  adjudication  of  condemnation  never  proceeds  upon  a 
doubt  or  difficulty  raised  upon  the  primary  proofs.  The 
only  question  is,  and  the  prize  courts  consider  that  a  grave 
one,  whether  the  doubt  or  difficulty  is  of  such  substantial 
character  as  to  put  the  neutral  to  the  delay  and  expense 
of  further  proof,  or  whether  acquittal  should  follow,  although 
without  full  assurance  of  its  duty. 

When  further  proof  is  ordered  from  a  claimant,  it  is  upon 
a  consideration  that  it  will  be  just  to  condemn  on  the 
primary  proofs,  if  the  damnatory  features  are  not  susceptible 
of  explanation,  but  not  just  to  assume  they  are  not  suscepti 
ble  of  explanation,  without  opening  an  opportunity  of  ex 
planation  by  extraneous  evidence. 

But  a  prize  court,  which  observes  the  true  principles  of  its 
jurisdiction,  never  admits  doubts  or  difficulties  from  extra 
neous  sources  and  demands  further  proof  to  allay  them;  or, 
if  this  last  proposition,  in  extreme  cases,  should  be  qualified, 
no  prize  court  ever  admits  doubts  or  difficulties  from  extra 
neous  sources,  and  proceeds  any  further  upon  them  to  the 


686         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

prejudice  of  the  claimant,  than  to  order  further  proof.  It 
would  be  a  complete  subversion  of  the  essential  principles 
of  the  prize  jurisdiction  to  accept  suspicions  and  surmises 
from  extraneous  evidence,  and  proceed  upon  them  as  ade 
quate,  without  having  opened  them  to  correction  by  further 
proof. 

(e)  When  the  neutral  character  of  the  property  is  unques 
tionable,  then  the  limits  of  visitation  and  search,  capture, 
investigation,  primary  judgment,  further  proof,  and  final 
adjudication  above  insisted  upon  are  applicable,  even  more 
stringently,  to  the  only  point  of  enquiry  for  the  prize  juris 
diction,  to  wit:  Whether  the  property  and  commerce, 
being  neutral,  are  affected  with  any  unneutral  participation 
in  the  war  that  exposes  them  to  interference  by  capture  and 
the  property  to  confiscation  by  any  of  the  rules  of  the  law  of 
nations  accepted  between  belligerents  and  neutrals,  as 
abridging  the  freedom  of  neutrals'  commerce. 

We  say  these  limitations  of  belligerent  right  are  more 
stringent,  in  the  admitted  situation  of  the  property  and  voy 
age  being  really  neutral  in  interest  and  management,  than 
in  the  controversy  whether  the  property  is  enemy  or  neutral. 
The  moment  it  is  decided  to  be  enemy,  there  is  an  end  of 
rights  on  the  one  hand  or  of  limits  of  power  on  the  other. 

But  when  the  question  is  of  unneutral  dealing  in  the  com 
merce  owned  and  pursued  by  neutrals,  then  all  presumptions 
favor  exemptions — the  burden  of  proof  lies  wholly  on  the  bellig 
erent.  No  duty  of  the  neutral  requires  it  to  regulate  its  trade, 
except  so  far  as  to  have  it  free  from  unneutral  participation 
in  the  war,  and  interception  and  vexation,  even  of  neutral 
commerce,  on  speculative  grounds,  are  justly  resented  by 
the  neutral  nation. 

An  observance  by  the  belligerent  of  all  limitations  in  his 
right  of  search,  capture,  and  adjudication  is  justly  expected 
when  it  is  indisputable  that  the  limit  is  and  has  been  under 
stood  to  be,  what  might  be  lawfully  done  by  a  belligerent 


THE  SPRINGBOK  CASE  687 

to  a  neutral,  not  whether  the  interest  touched  was  really 
enemy  and  only  fraudulently  neutral. 

(f)  Neutral  nations  submit  to  have  their  maritime  com 
merce  and  voyages  interfered  with  by  capture,  detention, 
and  prize  adjudication  only  when  the  voyage  is  being  pur 
sued  : 

(1)  In  the  carriage  of  contraband  in  trade  with  a  belliger 
ent  ;    or, 

(2)  In  a  voyage  to  a  port  of  a  belligerent,  with  whatever 
cargo,  which  is  actually  blockaded  by  the  other  belligerent; 
and, 

(3)  In  either  case  the  neutrals  limit  the  exposures  of  the 
voyage  or  the  property  that  they  will  tolerate,  to  capture 
while  in  delicto,  that  is,  during  the  voyage  to  the  deposit  of 
the  contraband  and  return,  in  the  one  case,  and  during  the 
voyage  to  the  blockaded  port  and  return,  in  the  other,  and 
under  no  other  circumstances. 

(g)  It  will  be  perceived,  therefore,  that  the  predicament  of 
lawful  condemnation  of  a  vessel  or  cargo  inculpated  for 
traffic  in  contraband  or  breach  of  blockade  involves  a  defi 
nite  voyage  between  the  terminus  a  quo  and  the  terminus 
ad  quern,  on  which  the  guilty  vessel  is  captured,  and  that 
this  arrest  in  delicto  is  as  necessary  to  a  condemnation  as  the 
guilt  itself. 

Neutrals  are  unwilling  that  their  commerce  shall  be  vexed 
and  harassed  by  any  interference  with  vehicle  or  cargo, 
except  by  interception  while  on  the  voyage  in  which  the  con 
traband  cargo  is  to  be  or  has  been  deposited,  or  on  the  very 
voyage  in  which  the  blockade  is  to  be  or  has  been  penetrated. 

These  principles  of  the  prize  jurisdiction  are  believed  to  be 
indisputable  and  of  universal  authority.  It  is  only  necessary 
to  recall  to  the  attention  of  the  tribunal  a  few  passages  from 
elementary  writers  on  the  subject. 

Thus  Sir  William  Scott  and  Sir  John  Nicholls,  in  their 
celebrated  letter  to  John  Jay,  United  States  minister  to 


688         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

England   (quoting  from  and  approving  the  most  eminent 
English    authority),    say: 

By  the  maritime  law  of  nations,  universally  and  immemoriably 
received,  there  is  an  established  method  of  determination  whether 
the  capture  be  or  be  not  lawful  prize. 

Before  the  ship  or  goods  can  be  disposed  of  by  the  captors  there 
must  be  a  regular  judicial  proceeding  wherein  both  parties  may  be 
heard,  and  condemned  thereupon  as  prize  in  a  court  of  admiralty, 
judging  by  the  law  of  nations  and  treaties. 

The  evidence  to  acquit  or  condemn  with  or  without  costs  or 
damages  must  in  the  first  instance  come  merely  from  the  ship  taken, 
viz. :  the  papers  on  board  and  the  examination  on  oath  of  the  master 
and  other  principal  officers. 

If  there  do  not  appear  from  thence  ground  to  condemn  as  enemies' 
property  or  contraband  goods  going  to  the  enemy,  there  must  be 
an  acquittal,  unless  from  the  aforesaid  evidence  the  property  shall 
appear  so  doubtful  that  it  is  reasonable  to  go  into  further  proof 
thereof. 

Though  from  the  ship's  papers  and  the  preparatory  examinations 
the  property  does  not  sufficiently  appear  to  be  neutral,  the  claimant 
is  often  indulged  with  time  to  send  over  affidavits  to  supply  that  defect. 

When  the  property  appears  from  evidence  not  on  board  the  ship 
(that  is  upon  further  proof  allowed  the  claimant)  the  captor  is 
justified  in  bringing  her  in  and  excused  costs  because  he  is  not  in 
fault. 

In  this  method  all  captures  at  sea  were  tried  during  the  last  war 
by  Great  Britain,  France  and  Spain,  and  submitted  to  by  the 
neutral  powers.  In  this  method  by  courts  of  admiralty  acting 
according  to  the  law  of  nations  and  particular  treaties  all  captures 
at  sea  have  immemorially  been  judged  of  in  every  country  of 
Europe.  Any  other  method  of  trial  would  be  manifestly  unjust,  ab 
surd,  and  impracticable. 

From  the  further  observations  of  this  letter  of  Sir  William 
Scott  and  Sir  John  Nicholl  it  appears  that— 

Upon  an  appeal  fresh  evidence  may  be  introduced,  if  upon  hear 
ing  the  cause  the  lords  of  appeal  shall  be  of  opinion  that  the  case  is 


THE  SPRINGBOK  CASE  689 

of  such  doubt  as  that  further  proof  ought  to  have  been  ordered  by  the 
court  below.  <v 

The  degree  of  proof  to  be  required  depends  upon  the  degree  of 
suspicion  and  doubt  that  belongs  to  the  case.  In  cases  of  heavy 
suspicion  and  great  importance,  the  court  may  order  what  is  called 
"plea  and  proof";  that  is,  instead  of  admitting  affidavits  and 
documents  introduced  by  the  claimants  only,  each  party  is  at  lib 
erty  to  allege,  in  regular  pleadings,  such  circumstances  as  may  tend 
to  acquit  or  condemn  the  capture,  and  to  examine  witnesses  in 
support  of  the  allegations  to  whom  the  adverse  party  may  admin 
ister  interrogatories.  (Letter  of  Sir  William  Scott  and  Sir  John 
Nicholl;  Story  on  Prize  Courts,  by  Pratt,  pp.  3-10.) 

From  Judge  Story's  note  to  1  Wheat.  Rep.,  we  quote  as 
follows: 

It  is  upon  the  ship's  papers  and  depositions  thus  taken  and  trans 
mitted  that  the  cause  is,  in  the  first  instance,  to  be  heard  and  tried. 
This  is  not  a  mere  matter  of  practice  or  form;  it  is  of  the  very  essence 
of  the  administration  of  prize  law;  and  it  is  a  great  mistake  to  admit 
the  common  law  notions,  in  respect  to  evidence,  to  avail  in  proceed 
ings  which  have  no  analogy  to  those  at  common  law. 

By  the  law  of  prize,  the  evidence  to  acquit  or  condemn  must,  in 
the  first  instance,  come  from  the  papers  and  crew  of  the  captured 
vessel.  The  captors  are  not,  unless  under  peculiar  circumstances, 
entitled  to  adduce  any  extrinsic  testimony. 

But  whether  such  further  proof  be  necessary  or  admissible,  can 
never  be  ascertained  until  the  cause  has  been  fully  heard  upon  the 
facts,  and  the  law  arising  out  of  the  facts  already  in  evidence. 
And  in  the  Supreme  Court,  during  the  whole  of  the  late  war  no  fur 
ther  proof  was  ever  admitted  until  the  cause  had  been  first  heard 
upon  the  original  evidence,  although  various  applications  were 
made  to  procure  a  relaxation  of  the  rule. 

Further  proof  is  in  all  cases  necessary  where  ....  the 
defects  of  the  papers,  the  conduct  of  the  parties,  the  nature  of  the 
voyage,  or  the  original  evidence  in  general,  induces  any  doubt  of 
the  proprietary  interest,  the  legality  of  the  trade,  or  the  integrity 
of  the  transactions. 

In  cases  where  further  proof  is  admitted  on  behalf  of  the  captors, 


690         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

they  may  introduce  papers  taken  on  board  another  ship,  if  they 
are  properly  verified  by  affidavit;  and  they  may  also  invoke  papers 
from  another  prize  cause.  Story  on  Prize  Courts,  (by  Pratt,)  pp. 
17,  18,  24,  25,  26. 

The  French  regulations  were  thorough  and  peremptory  on  this 
subject  of  the  confinement  of  the  proof  to  the  papers  and  persons 
on  board  of  the  prize.  (Quoted  in  note  to  Story  on  Prize  Courts, 
p.  17.) 

Complete  jurisdiction  and  authority  of  the  Mixed  Commission 
to  redress  any  injury  or  injustice  suffered  by  the  claimants  in 
the  prize  cause  by  the  sentence  therein. 

This  tribunal  has  already  and  repeatedly  had  occasion 
to  consider  its  powers,  and  has  not  hesitated  to  exercise 
them  in  according  reparation  to  claimants  who  have  suffered 
from  an  unwarranted  sentence  of  a  prize  court.  That  the 
sentence  complained  of  as  a  grievance  was  pronounced  by 
the  highest  tribunal  of  the  jurisdiction,  so  far  from  being  a 
reason  why  the  office  of  redressing  the  injury  should  be  de 
clined  by  this  Mixed  Commission,  it  is,  as  we  all  know,  a 
condition  required  by  the  principles  which  govern  such 
international  commissions,  and  insisted  upon  by  this  tri 
bunal,  that  the  aggrieved  parties  should  have  exhausted 
their  right  to  appeal  in  the  municipal  jurisdiction  before 
they  have  a  standing  in  the  international  court  for  the  invo 
cation  of  its  justice. 

It  is  important  to  recall,  what  is  not  to  be  controverted, 
that  the  doctrine  of  res  judicata — a  matter  adjudged  and  not 
to  be  judicially  re-examined — has  no  application  to  the  situa 
tion  in  which  the  sentence  of  a  prize  court  is  presented  for 
the  review  to  such  a  tribunal  as  this  Mixed  Commission. 

The  sentence  of  a  prize  court  binds  everywhere  upon  the 
two  points:  (1)  of  change  of  property  in  the  res  warranted 
by  the  condemnation,  and  (2)  the  justification  of  the  captors 
against  all  personal  recourse  or  question  for  their  acts  else 
where. 


THE  SPRINGBOK  CASE  691 

For  the  rest,  the  prize  jurisdiction  is  but  an  inquisition 
held  by  the  Government  through  its  special  court  of  prize 
upon  the  capture  (which  has  been  made  under  its  assumed 
instruction  and  authority  by  the  cruiser),  to  determine 
whether  such  capture  shall  be  assumed  and  justified  by  the 
Government  as  in  obedience  to  its  warrant  to  the  cruiser, 
and  in  conformity  to  its  views  of  belligerent  right.  If  it  be 
found  upon  this  inquisition  that  the  capture  is  so  justified, 
the  act  is  adopted  by  the  Government,  and  responsibility 
therefor  assumed  towards  the  neutral  power,  and  from  that 
moment  only  does  the  matter  become  one  of  direct  recourse 
and  accountability -bet ween  the  two  nations.  Such  is  the 
situation  here  in  the  matter  of  the  cargo  of  the  "Springbok" 
between  the  Government  of  Great  Britain  and  that  of  the 
United  States. 

Accordingly  Wheaton  says : 

The  jurisdiction  of  the  Court  of  the  capturing  nation  is  con 
clusive  upon  the  question  of  property  in  the  captured  thing.  Its 
sentence  forcloses  all  controversy  as  between  claimant  and  captors 
and  those  claiming  under  them,  and  terminates  all  ordinary  judicial 
inquiry  upon  the  subject-matter.  When  the  responsibility  of  the 
captor  ceases,  that  of  the  capturing  State  begins.  It  is  responsible 
to  other  States  for  the  acts  of  the  captors  under  its  commission  the 
moment  their  acts  are  confirmed  by  the  definite  sentence  of  the 
tribunal  which  it  has  appointed  to  determine  the  validity  of 
captures  in  war. 

An  unjust  sentence  must  certainly  be  considered  a  denial  of 
justice,  unless  the  mere  privilege  of  being  heard  before  condemna 
tion  is  all  that  is  included  in  the  idea  of  justice. 

The  moment  the  decision  of  the  tribunal  of  the  last  resort  has 
been  pronounced  (supposing  it  not  to  be  warranted  by  the  facts  of 
the  case,  and  by  the  law  of  nations  applied  to  these  facts),  and 
justice  has  been  thus  finally  denied,  the  capture  and  the  condemna 
tion  become  the  acts  of  the  State,  for  which  the  State  is  responsible 
to  the  Government  of  the  claimant.  (Wheaton's  Elements,  part  IV., 
ch.  2,  sec.15.) 


692         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

The  attention  of  the  Mixed  Commission  has  been  re 
peatedly  called  to  the  precedent  of  the  authority  exercised 
by  a  similar  commission  under  the  British  treaty  of  1794, 
and  of  the  discussion  between  the  British  and  American 
commissioners  on  the  point,  the  American  commissioners 
sustaining  the  fullness  and  supremacy  of  the  jurisdiction 
which  the  British  commissioners  questioned.  The  disposi 
tion  made  of  the  doubt  by  the  Lord  Chancellor  (Lough- 
borough),  in  his  answer  to  the  fifth  commissioner,  Colonel 
Trumbull,  who  had  submitted  the  point  for  his  advice,  is 
well  known : 

The  construction  of  the  American  gentleman  is  correct.  It  was 
the  intention  of  the  high  contracting  parties  to  the  treaty  to  clothe 
this  commission  with  power  paramount  to  all  the  maritime  courts 
of  both  nations — a  power  to  review  and  (if  in  their  opinion  it  should 
appear  just)  to  revise  the  decisions  of  any  or  all  the  maritime  courts 
of  both.  (Trumbull's  Reminiscences  of  his  Own  Times,  p.  193.) 

In  the  discussions  of  the  "Tribunal  of  Arbitration"  at 
Geneva,  the  question  came  up  upon  the  effect  of  the  sen 
tence  of  the  Vice  Admiralty  Court  at  Nassau,  acquitting 
the  "Florida,"  on  libel  of  the  Crown,  for  violation  of  the 
neutrality  act  of  Great  Britain.  As  is  well  known,  the 
tribunal  held  Great  Britain  responsible  for  the  "Florida," 
notwithstanding  the  adjudication  of  its  admiralty  court 
having  jurisdiction. 

Posture  of  the  memorialists  representing  the  cargo  of  the 
"Springbok,"  and  asking  indemnity  for  its  confiscation. 

The  claimants  in  the  prize  court  of  the  cargo  of  the 
"Springbok,"  viz.,  the  firm  of  S.  Isaac,  Campbell,  and  Co., 
of  London,  and  Thomas  Stirling  Begbie,  also  of  London,  are 
the  memorialists  here. 

The  firm  of  S.  Isaac,  Campbell  &  Co.,  was  at  the  time  of 
these  transactions,  composed  of  Samuel  Isaac  and  Saul 
Isaac,  and  had  no  other  partner.  (The  duly  accredited 


THE  SPRINGBOK  CASE  693 

attorney-in-fact  of  the  memorialists,  before  this  commission, 
Dugald  Forbes  Campbell,  Esq.,  of  London,  whose  powers 
duly  verified  are  filed  with  the  Commission,  is  not  to  be 
taken,  from  the  name  of  Campbell  appearing  in  the  firm  of 
S.  Isaac,  Campbell  &  Co.,  to  have  had  any  connection  with 
the  transactions  of  the  voyage  of  the  "Springbok."  That 
firm  had  no  partner  of  the  name  of  Campbell,  as  is  shown  in 
the  prize  causes  and  in  the  present  memorial.  Mr.  D. 
Forbes  Campbell  represents  the  existing  interests  in  the 
claim,  which,  as  is  stated  in  the  memorial,  are  largely  those 
of  creditors  of  the  original  parties.) 

Though  the  whole  legal  interest  in  the  cargo,  at  the  time 
and  since,  was  in  these  merchants,  yet,  in  respect  of  one 
undivided  third  of  the  cargo,  one  Joseph  Moses,  trading 
under  the  firm  of  Moses  Bros.,  of  London,  had  a  beneficial 
interest  or  trust.  One  of  the  bills  of  lading  of  teas,  coffee, 
and  groceries,  being  six  hundred  and  sixty-six  packages, 
names  Moses  Brothers  as  shippers.  (Memorial,  p.  2;  B.  L. 
No.  6,  Proofs  in  Prize  Cause.) 

The  decree  of  the  district  court. 

This  may  be  dismissed  in  a  few  words.  Its  purport  and 
reason  have  been  given  already  in  the  "Statement"  which 
forms  a  part  of  this  argument. 

The  condemnation  of  vessel  and  cargo  there  pronounced 
involved  no  novel,  difficult,  delicate,  or  dangerous  doctrines 
of  prize  law.  It  proceeded  on  the  ground  that  the  "Spring 
bok"  and  her  cargo  were  bound  for  a  blockaded  port,  and 
that  the  papers  of  the  voyage  to  Nassau  were  false  and 
simulated.  No  criticism  of  this  as  a  legal  ground  of  condem 
nation  is  possible.  There  is  one  fatal  objection  to  the  sen 
tence,  and  that  is,  there  is  not  the  least  support  in  the  evi 
dence  for  the  conclusions  of  fact  so  rashly  arrived  at  by  the 
court.  It  was  a  violent  injustice,  and  its  ground  of  con 
demnation  has  been  flatly  rejected  by  the  Supreme  Court. 


694         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

The  Supreme  Court's  sentence  of  restitution  of  the  ship,  and 
its  condemnation  of  cargo,  on  the  theory  of  a  projected 
further  voyage  of  the  cargo,  by  transshipment,  to  a  block 
aded  port,  are  equally  inconsistent  with  the  sentence  of  the 
district  court  and  its  reasons.  The  decree  of  the  Supreme 
Court  is  a  complete  answer  to  that  of  the  district  court. 

It  is  only  the  condemnation  of  the  Supreme  Court,  and 
the  grounds  of  it,  that  will  be  further  treated  in  this  argu 
ment. 

The  grounds  on  which  the  Supreme  Court  draws  its  damna 
tory  conclusions  ON  QUESTIONS  OF  FACT  examined. 

We  have  presented  in  detail,  and  in  connection  in  the 
"Statement,"  which  forms  part  of  this  argument,  the 
various  items  of  imputation  or  suspicion  to  the  prejudice  of 
the  cargo  of  the  "Springbok"  upon  which  the  Supreme 
Court  based  its  condemnation.  It  is  now  our  purpose  to 
subject  each  one  of  these  items,  which  collectively  make  up 
the  whole  case  upon  which  the  decree  of  the  Supreme  Court 
rests,  to  the  test  of  a  careful  and  candid  examination. 

I.  The  bills  of  lading  did  not  set  forth  the  contents  of 
1,388  packages,  naming  the  contents  of  only  619  packages, 
and  the  manifest  followed  the  bills  of  lading  in  this  respect. 
The  only  imputation  from  this  form  of  description  of  cargo 
in  these  mercantile  documents  made  against  the  integrity  of 
the  enterprise,  as  within  the  freedom  of  neutral  commerce,  is 
"the  desire  of  the  owners  to  hide  from  the  scrutiny  of  the 
American  cruisers  the  contraband  character  of  a  considerable 
portion  of  the  contents  of  these  packages." 

This  objection  to  the  regularity  of  the  documents  will  not 
bear  a  moment's  attention. 

(a)  The  discrimination  made  between  packages  of  which 
the  contents  are  mentioned  and  those  of  which  the  contents 
are  not  mentioned,  turned  entirely  upon  the  trade  regula 
tions  of  Great  Britain  and  not  at  all  upon  the  contraband  or 


THE  SPRINGBOK  CASE  695 

peaceful  nature  of  the  contents.  The  teas,  coffees,  spices, 
and  groceries,  which  were  mentioned  as  contents  of  packages, 
were  not  the  growth  of  Great  Britain,  and  had  been  im 
ported.  The  re-exportation  from  Great  Britain  of  these 
articles,  as  matters  of  revenue  and  trade  returns,  requires 
their  description  in  the  documents  of  exportation  if  the 
shippers  are  to  have  the  advantage  of  the  customs  regula 
tions  in  that  behalf.  This  accounts  for  the  mention  of  con 
tents  in  these  packages,  and  shows  the  absence  of  sinister 
motive  or  design  in  the  discrimination  which  is  looked  upon 
with  suspicion. 

Thus  we  find  it  stated  in  the  prize  cause  that  the  "cargo 
books"  found  on  board  exhibited  all  this,  and  the  following 
"memorandum"  is  entered  in  the  cause: 

Mem. — The  cargo-book,  marked  K,  contained  a  list  of  all  the 
cases,  casks,  barrels,  etc.,  with  their  corresponding  marks  and 
numbers,  with  their  length,  breadth,  and  solid  contents,  all  tally 
ing  with  the  bills  of  lading,  and  enumerating  the  articles  not  the 
product  of  Great  Britain,  namely — tea,  pepper,  coffee,  ginger,  and 
cloves.  (Memorial,  etc.  in  Riley  vs.  The  United  States,  No.  442, 
p.  132.) 

(b)  But  of  the  1,388  packages,  the  contents  of  which  were 
not  set  forth  in  the  bills  of  lading  or  the  manifest,  or  the 
cargo  book,  confessedly,  no  more  than  some  twenty-odd 
contained  anything  that  was  not  as  innocent  as  the  teas  or 
spices;      "Scotch     ginghams,"      "cotton     handkerchiefs," 
"printed  muslins,"  "shirts,"  "drawers,"  "gloves,"  "spool 
cotton,"  "needles,"  "gaiters,"  "cloths,"  in  great  quantities, 
made  up  the  cargo.     The  omission  to  name  these  contents 
could  be  imputed  to  no  motive  of  concealment,   and  is, 
manifestly,  answered  by  the  conformity  to  every-day  com 
merce,   which   made  such   details  in  voyages  from   Great 
Britain  to  her  colonies,  wholly  insignificant,  and  therefore, 
burdensome. 

(c)  But  the  so-called  contraband  on  board  which,  like  a 


696         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

needle  in  a  hay-stack,  was  to  be  hidden  by  this  cunning  con 
trivance,  might  have  been  named  with  perfect  impunity, 
and  by  full  commercial  description,  and  no  cruiser  would 
have  imagined  evil  therefrom.  Take  the  sample  case  with 
a  dozen  swords  and  a  dozen  bayonets !  Is  that  worth  hiding? 
Is  that  to  expose  a  cargo  of  groceries  and  dry  goods?  Was 
it  to  carry  that  to  the  armies  of  the  rebellion  that  £60,000 
worth  of  innocent  cargo  were  to  be  risked?  Then  the  but 
tons!  "Two  cases  of  buttons"  would  have  been  all  that 
they  would  have  designated  on  a  bill  of  lading  or  a  ship's 
manifest,  under  the  most  exacting  precision.  What  ex 
posure  would  have  come  from  this? 

So,  too,  the  twenty  bales  of  blankets  and  the  ten  kegs  of 
saltpetre,  or  nitrate  of  potash,  such  a  description  would  have 
been  a  matter  of  the  utmost  indifference,  as  items  in  a  cargo 
like  this. 

(d)  But  the  whole  argument  of  guilty  motive,  to  escape 
suspicion  from  the  visiting  cruiser  by  the  suppression  of 
contents,  refutes  itself. 

Its  whole  weight  rests  upon  the  idea  that  honest  neutral 
cargo  would,  regularly,  give  its  contents  in  the  bills  of  lading 
and  manifest;  and  to  avoid  suspicion,  these  shippers  thrust 
in  the  face  of  the  boarding  officer  documents  on  their  face 
betraying  irregularity,  concealment,  guilt!  Why,  the  only 
reason  the  captors  have  ever  suggested  for  sending  in  the 
"Springbok,"  was,  the  bills  of  lading  and  manifest  not  dis 
closing  the  contents.  To  be  sure,  under  the  light  of  the 
evidence,  showing  the  e very-day  regularity  of  these  papers, 
the  ignorance  or  willfulness  of  the  captors  in  so  treating 
these  papers  is  manifest.  But  we  are  dealing  with  the 
argument  of  the  Supreme  Court,  which  finds  these  papers  so 
suspicious  as  to  condemn,  and  yet  finds  they  were  put  in 
this  shape  to  meet  the  scrutiny  of  the  cruisers!  The  argu 
ment  is  felo  de  se. 

II.  The  bills  of  lading  and  the  manifest  following,  as  it  is 


THE  SPRINGBOK  CASE  697 

made  up  from  them,  gave  Spyer  and  Haywood,  and  Moses 
Brothers,  as  shippers,  and  not  Begbie  and  S.  Isaac,  Camp 
bell  &  Co.,  and  this  is  treated  by  the  Court  as  grave  matter 
of  "concealment,"  with  a  purpose  of  protecting  the  cargo. 

The  Court  find  in  the  invoked  papers  from  the  "  Gertrude  " 
and  the  "Stephen  Hart"  the  inference  that  the  disclosure  of 
the  names  of  Begbie  and  S.  Isaac  Campbell  &  Co.,  as  owners, 
"would  lead  to  the  seizure  of  the  ship  in  order  to  the  con 
demnation  of  the  cargo,"  and  infer  guilt  from  this  conceal 
ment.  A  few  words  will  dispose  of  this  somewhat  thought 
less  suggestion. 

The  point  about  Begbie  is  that  the  cruiser  that  should  over 
haul  the  "Springbok,"  seeing  that  Begbie  was  an  owner  of 
cargo  [who  is  assumed  to  be  of  ill-repute,  with  the  cruiser, 
by  reason  of  his  known  connection  with  the  "Gertrude,"  a 
detected  blockade-runner],  would  send  in  the  "Springbok" 
on  that  ground  of  suspicion. 

But  this  is  an  anachronism  of  the  most  flagrant  character. 
The  "Springbok"  was  overhauled  just  off  Nassau,  on  the 
3rd  February,  1868,  and  the  "Gertrude"  did  not  load  at 
Nassau  for  her  blockade-running  voyage,  which  was  to 
expose  her  owner,  Begbie,  to  the  suspicion  of  the  cruiser  that 
was  to  overhaul  the  "Springbok"  till  the  8th  of  April,  1863. 

The  fact  is,  however,  that  Begbie's  name  was  "disclosed" 
in  the  charter-party  found  among  the  ship's  papers  on  her 
capture. 

So  much  for  this  ground  of  suspicion  and  the  danger  to 
the  administration  of  justice  when  suspicion  and  hypothesis 
are  suffered  to  beguile  the  judgment  of  so  great  a  court. 

But  the  Court  find  a  similar  motive  in  respect  to  the  so- 
called  "concealment"  of  S.  Isaac,  Campbell  &  Co.,  as  owners 
of  the  cargo  of  the  "Springbok"  from  their  having  been  con 
cerned,  it  is  said,  with  the  case  of  the  "Stephen  Hart," 
which  had  in  fact  been  seized  and  sent  in  before  the  capture 
of  the  "Springbok." 


698         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

This  "concealment,"  which  weighed  so  heavily  with  the 
Supreme  Court  against  the  cargo  of  the  "Springbok,"  is 
readily  disposed  of,  not  as  an  anachronism,  but  as  a  mere 
oversight  on  the  part  of  the  Court.  There  was  no  con 
cealment  at  all.  The  ship's  papers,  which  came  into  the 
hands  of  the  boarding  officer  (with  the  bills  of  lading  and 
manifest  which  name  Spyer  and  Hay  wood  as  shippers  of  the 
cargo),  also  included  the  letter  of  advice  from  Spyer  &  Hay- 
wood  to  the  consignee  at  Nassau,  enclosing  the  very  bills  of 
lading,  showing  that  S.  Isaac,  Campbell  &  Co.  were  the 
owners  of  the  cargo  so  shipped,  and  Spyer  &  Haywood  were 
mere  shipping  agents.  The  letter  is  as  follows: 

"Springbok." 

LONDON,  8th  Dec.,  1862. 

15,  Billiter-street. 
B.  W.  HART,  Esq.,  Nassau. 

Dear  Sir:  Under  instructions  from  Messrs.  S.  Isaac,  Campbell 
&  Co.,  of  Jermyn  street,  we  inclose  you  bills  of  lading  for  goods 
shipped  per  "Springbok"  consigned  to  you. 

Trusting  to  safe  arrival  of  the  ship,  we  are,  dear  sir,  yours, 
obed'ly, 

SPYER  &  HAYWOOD, 
Agents  for  Messrs.  S.  Isaac,  Campbell  &  Co. 

(Riley  vs.  United  States,  442,  p.  100.) 

We  have  so  completely  disposed  of  these  grounds  oj  sus 
picion  on  which  the  Court  laid  so  much  stress  as  matters  of 
fact,  that  we  dismiss  them  with  a  single  suggestion  as  to  the 
poor  support  to  the  inference  of  the  Court  which  they  would 
have  afforded  had  the  facts  been  as  the  Court  conceived  and 
stated  them. 

No  neutral  nation  will  ever  tolerate  the  interception  of  a 
voyage,  and  sending  in  as  prize,  of  a  ship  whose  papers  are 
regular  and  whose  own  adventure  presents  no  ground  for 
detention,  upon  the  extraneous  fact,  that  the  owners  of 
cargo  have  had  connection  with  other  adventures  which 


THE  SPRINGBOK  CASE  699 

have  been  good  prize.  The  capturing  officer  who  should  so 
deal  with  captures  would  be  more  likely  to  be  cashiered 
than  to  earn  prize  money. 

III.  The  only  further  ground  which  the  Supreme  Court 
find  for  condemning  the  cargo  of  the  "Springbok"  is  the 
conclusion  that  it  was  intended  to  be  carried  on,  by  trans 
shipment  in  another  vessel,  to  violate  the  blockade.  The 
steps  of  the  Court's  reasoning  are  as  follows: 

(1)  It  is  apparent  from  the  terms  of  consignment  that  the 
cargo  was  not  sold  to  the  consignee,  but  remained  the  prop 
erty  of  the  shippers,  to  be  disposed  of  by  the  consignee  ac 
cording  to  their  instructions. 

(2)  The   Court  then,  without  disguise,  and  without  any 
pretense  of  evidence  of  any  instructions  to  forward  or  transship, 
proceed  to  make  up  instructions,  purely  inferential,  and 
wholly  deduced  from  the  "character  of  the  cargo." 

The  only  "character"  from  which  these  hypothetical  in 
structions  are  evolved  is  the  swords  and  bayonets,  buttons 
and  blankets.  The  dozen  swords  and  dozen  bayonets,  by 
some  unexplained  and  inexplicable  error  of  the  court,  are 
multiplied  into  "sixteen  dozen  words  and  ten  dozen  bay 
onets,"  and  thus  are  made  out  a  consignment  of  "arms,"  im 
porting  a  military  supply,  which  infers  destination.  The  two 
cases  of  buttons  are  magnified  "into  munitions  of  war," 
justifying  a  like  inference  of  destination,  and  then  the  twenty 
bales  of  blankets,  at  best  but  ancipitis  usus,  are  made  out  as 
looking  to  the  same  market. 

Now,  under  the  evidence  that  Nassau  was  an  entrepot 
where  all  such  articles  had  a  ready  market,  the  moment  the 
Court  had  decided  that  the  voyage  of  the  "Springbok"  ended 
at  Nassau,  it  is  manifest  that,  in  the  nature  of  things,  no 
inference  could  be  justified,  from  the  character  oj  the  articles, 
either  that  they  were  to  be  sold  in  Nassau  or  sent  forward. 
Yet  the  whole  reasoning  of  the  Court,  in  its  invention  of  in 
structions  to  transship,  which  are  to  condemn  the  cargo. 


700         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

makes  out  the  instructions  from  the  cargo  itself — that  is  to 
say,  the  only  voyage  for  which  the  cargo  was  ever  actually 
laden,  having  its  end  at  Nassau,  and  a  further  voyage  in 
tended  being  essential  to  be  proved  before  the  cargo  can  be 
condemned,  the  Court  allows  the  cargo  itself  to  prove  a  further 
voyage,  as  a  necessary  inference  from  the  contraband  features 
of,  say,  one  per  cent,  of  its  bulk  or  value! 

It  is  vain  to  make  two  stages,  for  the  reasoning,  viz. :  that 
instructions  to  transship  would  condemn,  if  proved,  and  the 
character  of  the  cargo  proves  such  instructions.  The  only 
effect  or  suspicion  is  the  cargo  itself,  and,  reduced  to  its  real 
meaning,  the  condemnation  is  based,  not  upon  any  instruc 
tions  for  any  voyage  proved,  nor  on  any  voyage  proved,  but 
on  the  contraband  nature  of  the  cargo  importing,  de  jure,  a 
hostile  destination.  Reduced  to  its  true  elements,  in  face  of 
the  market  of  Nassau,  made  for  and  swallowing  cargo  after 
cargo  of  goods,  to  be  again  sold  for  the  market  of  the  rebel 
States,  the  reasoning  of  the  Supreme  Court  is  wholly  un 
tenable. 

(3)  But  from  its  inference  against  the  one  per  cent,  of  the 
cargo,  which  it  selects  as  importing  a  hostile  ultimate  des 
tination  for  it,  the  Court  proceeds,  per  saltum,  to  the  con 
clusion  that  the  whole  cargo  was  going  to  the  same  destina 
tion. 

Against  reasoning  like  this,  no  obstacle  can  be  successfully 
opposed.  It  rests  upon  nothing,  in  nature  of  evidence,  and 
demands  condemnation  upon  the  force  of  suspicion  alone. 

It  says  the  proved  voyage  ended  at  Nassau,  and  the  ship 
and  cargo  were  there  to  part;  a  further  voyage  by  another 
ship  must  be  found  against  the  owners  of  the  cargo  or  it  can 
not  be  condemned;  none  such  is  proved,  but  we  think  the 
cargo  must  have  expected  a  further  voyage  and,  for  that  reason, 
we  condemn  it  on  its  face. 

(4)  The   Court  from  its  conclusions  thus  reached:     (1) 
that  the  cargo  was  to  go  forward  to  a  market  in  the  rebel 


THE  SPRINGBOK  CASE  701 

States,  and  (2)  that  it  was  not  to  go  by  the  "Springbok" — 
reasons  out  that  "the  plan  must  have  been  to  send  it  forward 
by  transshipment."  This,  as  an  abstract  proposition,  seems 
safe  enough  reasoning,  that  is  if  it  was  going  and  was  not 
going  in  the  "Springbok,"  it  must  have  been  going  in  an 
other  vessel! 

But  as  evidence  or  grounds  for  this  demonstration,  it  will 
be  perceived,  the  Court  have  added  nothing  to  what  appears 
on  the  face  of  the  cargo  in  its  contraband  features.  That  is 
to  say,  contraband  nature  and  hostile  destination,  as  matter 
of  fact,  being  both  necessary  to  condemn,  the  Court  infers 
the  latter  from  the  former.  What  is  this  but  to  condemn, 
on  the  contraband  nature  alone,  not  only  when  the  hostile 
destination  is  not  proved,  its  vehicle  not  suggested,  and  the 
port  not  surmised,  but  on  a  conceded  destination  of  the 
intercepted  vessel  being  neutral. 

(5)  Conscious  that  this  reasoning  has  gained  no  support 
or  evidence  beyond  the  nature  of  the  cargo  (i.e.,  of  one  per 
cent,  of  the  cargo),  the  Court  looks  for  the  elements  of 
probability  in  the  moral  evidence,  furnished  by  the  owners  of 
this  cargo  having  had  connection  with  previous  enter 
prises  to  break  the  blockade. 

To  be  sure,  the  fact  in  regard  to  Begbie  (and  to  the  voyage 
of  the  "Gertrude"  which  furnishes  this  moral  evidence 
against  him,  for  his  share),  is  unluckily  made  to  work  this 
imputation,  not  upon  a  voyage  of  the  "Gertrude"  before  but 
after,  the  "Springbok's,"  as  we  have  already  pointed  out. 
Little  as  we  think  of  an  argument  to  infer  a  meditated  illegal 
adventure  for  the  cargo  of  the  "Springbok,"  because  the 
owners  of  such  cargo  had  before,  in  another  adventure, 
planned  a  violation  of  the  blockade  in  which  they  had  been 
detected,  we  confess  its  value,  compared  with  an  argument 
of  present  guilt  in  the  "Springbok's"  adventure,  because  a 
subsequently  planned  and  perpetrated  violation  of  blockade 
had  been  traced  to  the  owners  of  the  "Springbok's"  cargo. 


702         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

But  as  the  Court  find  this  moral  evidence  against  the  cargo 
of  the  "Springbok,"  also,  because  S.  Isaac,  Campbell  &  Co. 
had  been  concerned  in  the  case  of  the  "Stephen  Hart's" 
voyage  to  a  blockaded  port,  we  will  consider  how  this  propo 
sition  stands  as  matter  of  prize  law,  to  which  neutral  nations 
are  bound  to  submit. 

The  proposition  is  this:  S.  Isaac,  Campbell  &  Co.  were 
connected  with  the  voyage  of  the  "Stephen  Hart,"  which 
was  interrupted  on  her  voyage  and  made  good  prize  for  in 
tent  to  violate  the  blockade:  therefore,  S.  Isaac,  Campbell  & 
Co.'s  interest  in  the  "Springbok's"  cargo  is  good  prize  of 
war,  as  contaminated  with  the  guilt  of  the  "Stephen  Hart's" 
adventure.  It  is  plain  that,  as  a  substantive  ground  of  fix 
ing  a  guilty  destination  in  the  "Springbok's"  cargo,  this 
reasoning  violates  every  principle  of  the  administration  of 
justice.  It  is  using  moral  evidence  of  former  participation  in 
a  proved  independent  voyage,  to  prove  the  very  corpus 
delicti  of  the  voyage  in  question  itself,  instead  of  employing 
it  to  prove  the  intent  which  makes  criminal  the  corpus  delicti, 
when  that  has  been  proved,  as  it  must  always  be,  as  an 
actual  occurrence  or  transaction. 

(6)  But  the  Court  recoils,  at  last,  from  this  groping  in  the 
dark  and  in  the  future — from  this  phantom  ship,  built  and 
rigged  from  keel  to  top-mast  from  moral  reasoning,  and,  on 
the  German  method,  evolved  from  the  consciousness  of  the 
reasoner — and  demands  some  fact  in  which  this  probable 
future  voyage  may  find  a  vehicle  and  an  opportunity.  It 
finally  supplements  these  "insufficient  grounds  for  a  satis 
factory  conclusion,"  by  the  fact  "of  the  presence  of  the 
*  Gertrude*  in  the  harbor  of  Nassau  .  .  .  about  the 
time  when  the  arrival  of  the  *  Springbok'  was  expected 
there";  and  from  this  fact  the  conclusion  which  condemns 
the  cargo  of  the  "Springbok"  is  finally  deduced,  as  follows: 
"It  seems  to  us  extremely  probable  that  she  had  been  sent  to 
Nassau  to  await  the  arrival  of  the  'Springbok,'  and  to  carry 


THE  SPRINGBOK  CASE  703 

her  cargo  to  a  belligerent  and  blockaded  port,  and  that  she 
did  not  so  carry  it  only  because  the  voyage  was  intercepted  by 
the  capture'9 

Now,  there  is  no  pretence  that  the  ship's  papers,  the  cargo, 
or  the  proofs  in  preparatorio,  in  the  case  of  the  "Springbok," 
connect  her,  or  her  voyage,  or  her  cargo,  or  its  destination 
with  the  steamer  "Gertrude."  By  invocation,  at  the  hear 
ing,  the  captors  brought  in  from  the  case  of  the  "  Gertrude," 
which  was  captured  with  a  full  cargo,  laden  April  8,  at 
Nassau — long  after  the  capture  of  the  "Springbok" — all  the 
papers  they  desired,  and  it  is  the  ownership  of  the  "Ger 
trude"  by  Begbie,  and  her  supposed  presence  at  Nassau  to 
await  the  arrival  of  the  "Springbok,"  that  the  Court  find 
damnatory  of  the  cargo  of  the  "Springbok," 

Now,  the  fact  utterly  fails.  The  earliest  date  at  which 
these  papers  from  the  case  of  the  "Gertrude"  show  her  at 
Nassau  is  April  8,  1863.  The  "Springbok"  was  captured 
within  a  day's  sail  of  Nassau  on  the  3d  February,  1863,  and 
on  that  day  the  "Gertrude"  was  quietly  lying  at  Queens- 
town  in  Ireland,  where  she  had  just  arrived,  and  whence  she 
had  no  voyage  commenced,  or  for  which  she  was  loaded. 

The  grave  error  of  fact,  out  of  which  the  Court  made  out  a 
vehicle  and  voyage  to  carry  on  the  cargo  of  the  "Springbok" 
to  a  hostile  destination  (and  without  which  the  cargo  could 
not  have  been  condemned),  when  corrected,  overthrows  the 
whole  damnatory  hypothesis  on  which  the  confiscation  is 
worked  out,  in  the  reasons  and  grounds  given  by  the  Court. 

This  is  but  one  more  instance  of  the  very  serious  conse 
quences  of  allowing  moral  reasoning  and  extraneous,  frag 
mentary,  and  wholly  irrelevant  papers,  of  res  inter  alias,  to 
frame  not  merely  the  guilty  intent  of  a  proved  voyage  in 
which  a  ship  has  been  intercepted,  but  the  very  corpus 
delicti,  the  very  voyage  itself,  which  had  no  existence  or  hope 
of  existence,  except  in  misconceived  fact  and  purely  fanciful 
reasoning. 


704         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

(7)  But  all  this  seems  but  an  insecure  footing  for  the 
Court  to  rest  their  judgment  upon,  and  they  seek  some  sup 
port,  however  feeble,  that  appears  at  least  to  be  chargeable 
and  responsible  as  the  action  of  the  claimants.  And  this 
confession  or  conviction  is  to  come  from,  what  the  Court 
call,  "the  very  remarkable  fact,"  that  the  claimants  never 
applied  for  leave  to  take  further  proof.  The  principles  of 
prize  law  prohibit  this  recourse  to  proof  de  hors  the  ship  and 
her  crew  at  the  request  of  a  party.  It  is  to  proceed  from  the 
Court's  own  demand  or  it  does  not  come  at  all. 

At  what  stage  should  any  such  application  have  been 
made  by  these  claimants? 

If  a  claimant  should  make  such  a  request  before  the  first 
hearing,  before  the  Court  have  found  a  difficulty,  such  an 
application  would  be  considered,  and  in  the  prize  jurisdic 
tion  is  well  understood  to  be,  a  concession  that  on  the  primary 
proofs  condemnation  must  be  expected  to  pass.  But  the 
whole  case  shows  that  these  claimants  never  had  reason  to 
imagine  that  a  decree  could  be  made  by  any  prize  court  on 
invoked  proof  in  favor  of  the  captors,  without  giving  opportunity 
for  further  proof  to  the  claimants.  Besides,  on  the  facts  of 
the  case,  the  claimants  could  not  foresee  a  condemnation  on 
the  ground  that  this  "Springbok"  itself  was  to  run  the  block 
ade.  It  cannot  be  imputed  to  them  as  a  fault  not  to  have 
foreseen  a  judgment  on  grounds  which  the  Supreme  Court  has 
wholly  repudiated.' 

Should  they  have  applied  after  this  decree  of  the  district 
court  made  on  the  grounds  that  it  disclosed?  They  certainly 
were  not  wrong  in  their  reliance  on  reversing  the  decree  of 
the  district  court,  as  the  result  has  shown.  No  further 
proofs  were  necessary  to  refute  the  imputation  of  the  "  Spring 
bok's  "  voyage  being  itself  intended  to  penetrate  the  blockade 
and  this  was  the  sole  ground  of  condemnation. 

Should  they  have  applied  to  the  Supreme  Court  for  leave 
to  take  further  proofs  ? 


THE  SPRINGBOK  CASE  705 

We  have  quoted  above  from  the  treatise  of  Judge  Story, 
which  instructed  the  profession  in  the  true  doctrine  of  further 
proof,  as  emanating  from  the  spontaneous  movement  of  the 
Court  to  that  end.  Besides  the  doctrine  thus  laid  down, 
Judge  Story  gave  the  practice  of  the  Supreme  Court  as  estab  - 
lished  and  unflinching,  never  departed  from  in  a  single  in 
stance,  to  deny  any  application  for  further  proof  "until  the 
cause  had  been  first  heard  on  the  original  evidence."  (ut 
supra). 

We  have  exhausted  every  stage  or  situation  in  the  progress 
of  the  cause  to  which  this  strange  reproach  of  the  Supreme 
Court  is  applicable. 

The  Supreme  Court  itself,  in  its  judgment,  convicted  the 
district  court  (1)  of  error  in  the  substance  and  essence  of  its 
sentence,  and  (2)  of  irregularity  in  allowing  the  captors  to 
invoke  proof  outside  of  the  captured  vessel.  It  then  pro 
ceeded  to  expose  the  new  ground  of  condemnation,  viz. :  the 
hypothesis  of  continuous  voyage  of  cargo  by  a  new  bottom, 
to  support  it  on  suspicions  founded  on  the  irregular  further 
proofs  allowed  the  captors,  to  confirm  it  by  probable  reasons, 
quite  extraneous  to  the  province  of  the  primary  proof,  and 
necessarily  to  be  met  by  further  proof  from  the  claimants  if 
the  Court  thought  them  weighty  enough  unexplained  to  con 
demn,  and  yet  the  Supreme  Court  condemned  without  open 
ing  the  case  for  further  proof.  This  is,  indeed,  "a  very  re 
markable  fact,"  and  we  shall  have  occasion  to  observe  upon 
it  hereafter. 

(8)  The  Supreme  Court  seems  to  think  it  a  fault  that  the 
claims  were  sworn  to  by  the  proctor  and  agent  of  these  absent 
parties,  and  not  by  the  parties  personally. 

This  imputation  requires  but  a  moment's  attention.  The 
claims  were  sworn  to  according  to  the  rules,  which  are  but  a 
snare,  if  the  meaning  is  that  the  acceptance  of  the  allowed 
convenience  is  to  condemn  the  property  on  that  ground. 

No  doubt  a  prize  court  may  see  that  its  doubts,  which 

47 


706         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

might  be  resolved  by  a  personal  test  oath,  are  not  equally 
met  by  an  agent's  verification,  however  regular.  In  such 
case  the  Court  always  suggests  the  difficulty,  and  awaits  from 
the  claimant  this  form  of  further  proof,  and  if  it  be  declined, 
feels  at  liberty  then  to  make  a  distinction  in  the  weight  due 
to  the  one  or  the  other. 

The  legal  theory  of  "Continuous  voyage''  considered  and  de 
fined. 

The  doctrine  of  "continuous  voyage,"  as  it  has  been  in 
terpreted  and  applied  by  the  Supreme  Court  in  cases  previous 
to  that  of  the  "Springbok,"  may  be  stated  thus:  A  voyage 
which,  at  its  start  from  the  neutral  port  of  lading  for  the 
carriage  of  contraband  to  the  belligerent's  country  (or  inno 
cent  cargo  to  a  blockaded  port  of  the  enemy's  country)  in 
cludes  in  its  project  and  design  this  destined  deposit  of  its 
lading  in  the  enemy's  ports,  is  open  to  belligerent  intercep 
tion,  from  the  start,  although  it  should  appear  that  the  ship 
and  cargo  were  actually  seeking  a  neutral  port  when  inter 
cepted,  provided  it  should,  also,  appear  that  from  the  neutral 
port  the  cargo  was  intended  to  be,  as  a  part  of  the  original  and 
planned  adventure,  carried  to  the  enemy's  port.  And,  this 
latter  element  of  the  completion  of  the  transit  from  the  first 
neutral  port  of  departure  to  the  enemy's  port  being  embraced 
in  the  original  guilty  scheme,  the  fact  that  the  carriage  from 
the  intermediate  neutral  port  was  to  be  by  transshipment, 
and  taken  up  by  a  new  bottom,  does  not  purge  the  adventure 
of  its  guilt,  or  protect  the  first  stage  of  the  voyage  from  inter 
ception,  and  the  ship  and  cargo  from  condemnation.  The 
doctrine  is  as  extremely  stated  in  the  head-note  of  "The 
Bermuda,"  3  Wallace,  515,  as  anywhere: 

A  voyage  from  a  neutral  to  a  belligerent  port  is  one  and  tfile  same 
voyage,  whether  the  destination  be  ulterior  or  direct  and  whether 
without  the  interposition  of  one  or  more  intermediate  ports;  and 
whether  to  be  performed  by  one  vessel  or  several  employed  in  the 
same  transaction  and  in  the  accomplishment  of  the  same  purpose. 


THE  SPRINGBOK  CASE  707 

The  recognized  doctrine,  of  which  we  make  no  complaint, 
that  vessels  carrying  cargo  "to  belligerent  ports  under 
blockade  are  liable  to  seizure  and  condemnation  from  the 
commencement  to  the  end  of  the  voyage,"  (The  Bermuda, 
ut  supra},  is  thus  thought  to  be  made  applicable  to  a  project 
of  violation  of  blockade,  at  any  stage  of  its  execution,  al 
though  such  project  included  intermediate  ports  and  trans 
shipment  and  carriage  by  new  bottoms. 

The  condition  of  proof,  and  the  interpretation  of  it,  which, 
in  this  extreme  case  of  the  "Bermuda,"  was  thought  by  the 
court  to  justify  condemnation,  must  not  be  overlooked  and 
should  be  carefully  weighed.  It  really  gives  the  measure  of 
the  doctrine  of  the  Court,  laid  down  in  that  extreme  case 
on  the  subject  of  "continuous  voyage." 

The  Court  concludes: 

What  has  already  been  adduced  of  the  evidence,  satisfies  us 
completely  that  the  original  destination  of  the  "Bermuda"  was  to  a 
blockaded  port;  or  if  otherwise,  to  an  intermediate  port,  with  intent 
to  send  forward  the  cargo  by  transshipment  into  a  vessel  provided  for 
the  completion  of  the  voyage. 

The  Court  found  sufficient  evidence  that  either  the 
"Bermuda"  herself  or  her  tender,  the  "Herald,"  was  to 
complete  the  voyage  and  penetrate  the  blockade,  and  condemned 
both  ship  and  cargo. 

With  the  doctrine  of  continuous  voyage,  as  thus  limited 
and  defined  (and  made  to  depend  for  its  application  on  a 
proved  voyage  reaching  from  a  neutral  to  a  belligerent's  port, 
by  ascertained  vessels  completing  the  project  in  a  scheme 
which  is  intercepted  only  by  the  capture),  there  is  nothing  in 
the  case  of  the  "Springbok"  that  involves  us  in  any  necessary 
controversy.  The  important  question,  for  neutrals,  is, 
whether  trade  between  neutral  ports  to  which  the  actual 
voyage  intercepted  is  really  confined,  is  to  be  made  guilty, 
by  surmise,  conjecture,  or  moral  evidence,  and  that,  even, 
not  of  the  further  carriage  and  further  carrier,  but  only  of  a 


708         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

probability  that  such  supplementary  further  carriage,  and 
some  supplementary  carrier  may  or  must  have  been  included 
in  the  original  scheme  of  the  commercial  adventure. 

If  a  belligerent  prize  court  can  thus  be  master  of  a  neutral 
commerce  by  this  fiction  of  continuous  voyage  for  the  case 
of  all  trade  between  neutral  ports,  which  has  its  stimulus 
from  the  state  of  war,  why,  then  we  have  a  paper  blockade 
of  the  neutral  ports  in  question,  and  their  commerce  is  at  the 
mercy  of  the  belligerent. 

A  little  attention  to  the  course  of  the  prize  jurisdiction  on 
this  doctrine  of  continuous  voyage,  will  show  how  carefully 
the  province  of  probable  reasoning  has  been  confined  to  con 
victing  of  intent,  when  the  corpus  delicti — the  voyage  to  the 
enemy  port — was  proved  with  the  same  definiteness  of 
vehicle,  and  port,  and  process  of  execution,  as,  confessedly, 
is  essential  when  the  voyage  is  direct  and  simple. 

The  doctrine  of  continuous  voyage  had  its  origin  and  its 
principal  illustration  in  the  prize  courts  in  the  trade  between 
the  Colonies  and  the  parent  State  during  the  European  wars 
of  the  last  century  and  the  early  part  of  the  present.  The 
question,  as  it  presented  itself,  was  of  this  kind.  Trade  be 
tween  European  States  and  their  transmarine  colonies,  in 
time  of  peace,  was  not  open  to  the  navigation  of  other  nations. 
When,  under  the  stress  of  war,  any  one  of  these  States 
threw  open  this  interdicted  colonial  trade  to  neutrals,  the 
hostile  Power  refused  to  recognize  this  as  lawful  neutral  com 
merce.  On  the  contrary,  it  was  treated  as  succor  to  the 
enemy,  in  relief  of  its  trade,  which  the  war  had  strangled, 
and  the  belligerent  captured  and  condemned  the  ships  and 
cargoes  of  the  neutral  as  if  an  enemy;  but,  as  trade  between 
the  colonies  and  the  neutral,  and  between  the  neutral  and  the 
European  States,  was  incontestably  open  to  the  neutral,  a 
trade  was  attempted  of  colorable  importation  from  Cuba, 
for  instance,  to  Boston,  and  exportation  from  Boston  to  Spain, 
and  so  of  return  cargoes  through  the  interposition  of  a  neu- 


THE  SPRINGBOK  CASE  709 

tral  port.  This  scheme  was  denounced,  and  this  commerce 
attacked  by  the  belligerent.  The  question  for  the  prize 
courts  was,  whether  the  importation  into,  and  the  exporta 
tion  from,  the  neutral  port,  were  really  transactions  of  the 
neutral's  own,  and,  of  course,  legitimate  commerce,  or  whether 
it  was  really  a  trade  between  the  colony  and  the  parent 
State,  and  the  interposition  of  the  neutral  port  was  only 
colorable. 

An  examination  of  the  cases  under  this  head  of  prize  law 
will  show  two  things  which  mark  a  firm  and  just  observation 
of  the  limits  between  the  actual  proof  of  the  corpus  delicti, 
and  the  province  of  moral  reasoning  in  deciding  on  the  intent 
of  the  transaction. 

The  captures  were  made  in  the  voyage  from  the  neutral  port 
to  the  enemy  port,  and  then,  the  cargo  showing  its  origin  as  of 
the  proscribed  commerce,  the  complete  circuit  of  transporta 
tion,  as  matter  of  fact,  of  colonial  produce  to  the  parent 
State  (or  vice  versa) — that  is,  the  corpus  delicti  was  incon 
testable.  But  the  prize  court  never  assumed  upon  inter 
ception  of  the  voyage  to  the  neutral  port,  to  invent  or  sur 
mise,  out  of  the  state  of  trade  and  its  profits  and  temptations, 
the  further  voyage  from  the  neutral  port  which  was  neces 
sary  to  the  corpus  delicti. 

The  second  point  to  which  we  seek  attention  is,  that  when, 
on  this  state  of  proofs  of  the  actual  circuit  of  the  prohibited 
trade,  the  prize  court  found  any  basis  for  suspicion  that  the 
apparent  importation  and  exportation  to  and  from  the  neu 
tral  port  was  colorable  and  not  real,  the  court  did  not  con 
demn,  but  always  opened  the  case  to  the  claimants  for 
further  proof—  that  is  to  say,  there  being  before  the  court  an 
actual  voyage  which  is  guilty  or  innocent  according  to  the 
sincerity  of  intent  in  the  transaction,  it  will  not  condemn  unless 
the  neutral  fails  to  meet  an  opportunity  for  making  clear 
what,  in  its  nature,  it  must  be  in  his  power  to  make  clear. 

But  observe,  how  much  stronger  was  the  position  of  the 


710         SPEECHES  OP  WILLIAM  MAXWELL  EVARTS 

neutral  in  the  case  of  the  "Springbok,"  as  it  stood  before  the 
prize  court.  Instead  of  the  voyage  before  the  Court  being 
guilty  or  innocent  upon  a  question  of  intent  to  be  explored,  it 
was  absolutely  innocent,  unless  and  until  an  additional  voyage 
should  come  into  play  to  make  out  the  corpus  delicti;  and 
then,  but  not  till  then,  the  neutral  might  fairly  be  called 
upon  for  further  proofs  to  exculpate  or  inculpate  him  in  such 
intent,  ab  initio,  as  would  support  condemnation. 

See  the  important  cases  of:  The  Polly,  1  Rob.,  361; 
The  Maria,  5ib.,  635;  The  William,  ib.9  385;  The  Thomysis 
Edw.  Adm.  Rep.,  17. 

How  far  neutrals  will  finally  acquiesce  in  this  doctrine  of 
"continuous  voyage"  in  its  threat  to  the  freedom  of  their 
commerce,  it  is  not  for  us  to  predict.  But  we  may  safely 
suggest  to  the  wisdom  and  justice  of  this  International 
Tribunal,  that  the  limits  of  the  prize  jurisdiction  must  be 
strictly  confined  to  judging,  on  probable  reasoning,  of  the 
culpability,  under  the  law  of  nations,  of  the  property  sub 
jected  to  its  sentence,  and  not  allowed  to  raise  the  supposed 
culpable  voyage  itself  out  of  the  clearly  innocent  neutral 
voyage,  upon  surmise  and  conjecture. 

We  are  apt  to  think  of  these  questions  of  continuous 
voyage  as  chiefly  interesting  to  Great  Britain,  with  her 
transmarine  possessions,  and  not  to  a  country  like  the  United 
States  or  Italy,  without  them.  But  the  United  States,  with 
its  immense  sea-coasts  on  the  Atlantic  and  the  Pacific,  and 
Italy,  in  its  position  half-way  between  the  Levant  and  the 
Atlantic,  both  occupy  positions  of  the  greatest  interest 
on  this  question.  Is  the.  whole  coasting-trade  in  dry  goods 
and  breadstuff s  between  northern  and  southern  ports,  and 
in  cotton  between  New  Orleans,  Savannah,  and  Charleston 
and  New  York  to  be  exposed  to  French  or  British  cruisers  in 
a  war  between  those  countries,  or  between  either  of  them 
and  Mexico  or  South  America,  because  these  domestic  voy 
ages  between  neutral  ports  of  this  country  are  to  be  supple- 


THE  SPRINGBOK  CASE  711 

merited  by  future  voyages  of  unknown  vessels  to  unknown 
belligerent  ports?  Are  these  cruisers  to  visit  and  send  in, 
across  the  Atlantic,  for  adjudication,  a  cotton-laden  ship, 
admitted  to  be  bound  from  New  Orleans  to  New  York,  be 
cause  New  York  merchants  are  sending  shipload  after  ship 
load  of  cotton  to  France  or  to  England  and  it  is  probable  the 
intercepted  cargo  might  have  an  ulterior  destination? 

Is  Italy,  in  wars  between  France  and  England,  or  of  either 
or  both  of  them  with  Russia,  on  some  Eastern  or  Turkish 
question,  to  find  its  neutral  trade  molested  because  what 
comes  to  it  from  the  Levant  may  seek  a  new  voyage  through 
the  Straits  of  Gibraltar,  and  what  comes  to  it  through  the 
Straits  of  Gibraltar  may  have  an  ulterior  destination,  by  a 
new  voyage,  to  the  Bosphorus,  the  Black  Sea,  the  Greek 
"entrepot"  of  Syria,  or  the  Suez  Canal? 

We  must  think  no  more  important  question  than  this  of 
"continuous  voyages,"  as  illustrated  by  the  case  of  the  prize 
condemnation  of  the  cargo  of  the  "Springbok,"  can  touch 
either  the  interests  or  the  pride  of  neutral  maritime  States. 

The  grave  errors  in  the  condemnation  of  the  cargo  of  the 
"Springbok"  and  in  the  grounds  and  principles  of  that  con 
demnation,  in  the  prize  court,  which  entitle,  the  memorialists  to 
restitution  and  indemnity  from  the  United  States  at  the  hands  of 
this  International  Tribunal. 

If  we  have  been  at  all  successful  in  impressing  the  Mixed 
Commission  with  the  views  of  the  law  and  estimate  of  the 
facts  which  entered  into  this  final  sentence  of  condemnation, 
as  we  understand  and  have  exposed  them,  our  further  duty 
in  this  argument  seems  but  formal. 

That  duty,  we  conceive,  will  be  best  performed  by  defin 
ing  and  concisely  stating  the  points  wherein  the  judgment 
of  the  Supreme  Court  fails  to  conform  to  the  Rules  of  the 
law  of  nations  governing  the  subject. 


712         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

I.  The  original  capture  was  wholly  unjustifiable.  The 
visitation  and  search  disclosed  nothing  which  rendered  the 
intercepted  voyage  of  the  "Springbok"  amenable  to  further 
molestation.  If  the  meagreness  of  the  information  afforded 
by  the  ship's  papers,  as  to  the  character  of  the  contents  of 
the  packages  of  which  it  was  made  up,  warranted  any  further 
action  of  the  visiting  cruiser,  such  further  action  could  have 
gone  only  to  a  search  of  the  packages  of  the  cargo  them 
selves  for  evidence  of  conviction  or  just  suspicion.  Upon 
the  result  of  such  search  it  would  have  depended,  in  any 
case,  whether  the  cruiser  would  have  been  justified  in  send 
ing  in  the  prize.  But  no  such  search  was  made,  and  no 
extraneous  grounds  of  doubt  or  surmise,  of  course,  were 
accessible  to  inculpate  the  voyage. 

Now,  upon  the  construction  which  the  visiting  cruiser 
should  have  put  upon  the  voyage  which  it  assumed  to  inter 
cept,  the  observations  of  the  Supreme  Court  exclude  any 
doubt : 

Her  papers  were  regular,  and  they  all  showed  that  the  voyage  on 
which  she  was  captured  was  from  London  to  Nassau,  both  neutral 
ports  within  the  definitions  of  neutrality  furnished  by  the  interna 
tional  law.  The  papers,  too,  were  all  genuine,  and  there  was  no 
concealment  of  them  and  no  spoliation.  Her  owners  were  neu 
trals,  and  do  not  appear  to  have  had  any  interest  in  the  cargo, 
and  there  is  no  sufficient  proof  that  they  had  any  knowledge  of  its 
alleged  unlawful  destination.  The  preparatory  examinations  do 
not  contradict,  but  rather  sustain  the  papers.  5  Wall.,  21  ut  supra. 

Now,  there  is  no  pretence  that  the  examination  of  the 
voyage  made  by  the  cruiser  disclosed  any  doubt  of  the 
neutral  ownership  of  the  cargo,  or  that  any  such  doubt  was 
entertained  by  the  captors,  or  has  been  intimated  from  any 
quarter  at  any  stage  of  this  case.  There  is  no  pretence  that 
there  was  indication  or  suspicion  of  contraband  in  the  cargo 
that  affected  the  cruiser  in  sending  her  in.  If  every  box 
and  bale  had  been  opened,  captors  of  the  least  experience 


THE  SPRINGBOK  CASE  713 

in  prize  would  have  seen  that  the  presence  of  the  trivial 
proportion  of  contraband  on  board  was  a  moral  demonstra 
tion  that  the  large  and  valuable  cargo  of  dry  goods  and 
groceries  had  not  a  destination  to  a  hostile  port,  or  the 
contraband,  of  no  importance  for  the  profits  of  the  general 
adventure,  would  not  have  been  suffered  gratuitously  to 
expose  the  enterprise  to  ignorant  or  interested  suspicion. 
But,  no  matter  what  the  cargo  of  the  voyage  between  neutral 
ports,  the  voyage  is  free  from  molestation. 

Certainly,  none  of  the  confirmations  of  doubt  to  the  preju 
dice  of  the  cargo  which  the  prize  court  drew,  by  invocation, 
from  extraneous  sources,  influenced  at  the  time,  or  can  now 
justify,  the  captors  in  sending  in  this  prize.  Manifestly  it 
will  not  do  to  justify  a  cruiser  in  sending  in  a  neutral  ship 
and  cargo,  taken  on  a  neutral  voyage,  on  the  speculation 
that  it  may  be  the  cargo  was  to  go  forward,  and  if  so,  perhaps 
it  may  be  provable.  It  is  difficult  to  understand,  on  the 
essential  principles  of  prize  law,  on  what  imaginable  justi 
fication  the  "Springbok"  was  sent  in. 

Mr.  Seward  communicated  to  Lord  Lyons,  who  asked  for 
an  explanation,  the  captors'  reason,  as  assigned  in  the  report 
to  the  Navy  Department,  as  follows:  It  was  "because  she 
had  no  proper  manifest,  and  nothing  to  show  the  character" 
of  her  cargo,  which  the  captain  said  he  was  ignorant  of. 
But  this  reason,  as  we  have  before  insisted,  if  well  founded, 
only  indicated  and  justified  a  search  into  the  character  of 
her  cargo,  which  after  all,  however  composed,  was  equally 
lawful  between  neutral  ports. 

The  mystery  of  the  capture,  however,  has  been  publicly 
explained  in  her  having  been  denounced  by  agents  of  the 
American  Government  in  England,  in  advance  of  her  sailing, 
in  a  "black  list"  of  vessels  intended  to  run  the  blockade. 
This  was  a  mere  blunder,  by  which  this  deep  sailing  vessel 
was  grouped  with  a  list  of  shallow  draft  steamers. 

But  this  ground  of  capture  of  neutral  commerce  as  a  justi- 


714         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

fication  to  a  cruiser  could  never  be  tolerated,  and  the  Ameri 
can  Government  gave  instructions  to  their  cruisers  that 
should  preclude  it  thereafter.  The  details  of  this  matter 
are  given  in  Appendix  A  to  this  argument. 

The  whole  history  of  this  capture  shows  that  it  was  in 
itself  irregular  and  unjustifiable,  that  it  was  prompted  by 
irresponsible  suspicions  which  had  no  foundation,  and  to 
which  the  vessel,  its  lading,  its  papers,  and  its  destination, 
neither  gave  rise  nor  aliment. 

It  is  a  marked  case  of  speculative  seizure,  detention,  and 
diversion  of  the  voyage,  not  upon  indications  which  the 
visit  and  search  at  sea  disclosed,  but  in  entire  absence 
of  such  indications.  The  seizure  was,  apparently  made  on 
the  chance  that  independent,  extraneous  and  argumentative 
grounds  of  suspicion  might  possibly  warrant  it. 

On  the  ground,  then,  that  the  capture  violated  the  right 
of  the  neutral,  and  exceeded  the  privilege  of  the  belligerent, 
the  restitution  and  indemnity  demanded  should  be  accorded. 

II.  The  trial  in  the  prize  court  violated  the  essential 
principles  of  the  prize  jurisdiction  as  established  between 
belligerents  and  neutrals  and  in  which  the  latter  find  the 
limits  of  their  exposure  and  submission.  The  only  theory 
upon  which  the  method  of  a  prize  court  in  condemning  prop 
erty  sent  in  for  adjudication  can  be  justified  is  that  the 
proof  furnished  by  the  ship's  papers,  the  cargo,  and  the 
depositions  of  all  on  board  are,  so  to  speak,  the  ship's  own 
story  of  the  voyage,  told  by  itself,  and  it  is  not  unfair  to 
condemn  it  thus  out  of  its  own  mouth.  It  is  for  this  reason 
that  Judge  Story  has  so  emphatically  said  that  this  confine 
ment  of  the  proofs  rigidly  within  these  limits,  "is  not  a 
mere  matter  of  practice  or  form;  it  is  of  the  very  essence  of 
the  administration  of  prize  law."  Not  less  thorough  and 
comprehensive  is  the  declaration  of  the  eminent  English 
authorities  we  have  quoted:  "In  this  method,  by  courts  of 
admiralty  acting  according  to  the  law  of  nations  and  par- 


THE  SPRINGBOK  CASE  715 

ticular  treaties,  all  captures  at  sea  have  immemorially  been 
judged  of  in  every  country  in  Europe.  Any  other  method 
of  trial  would  be  manifestly  unjust,  absurd,  and  impracti 
cable"  (Sir  William  Scott,  etc.,  ut  supra.) 

Now,  at  the  original  hearing  in  prize  the  advocate  for  the 
captors  (not  the  United  States  attorney  representing  the 
Government),  invoked  papers  from  the  case  of  the  "Stephen 
Hart"  to  form  part  of  primary  proofs  to  condemn  the 
"Springbok"  and  her  cargo.  Notwithstanding  the  strenu 
ous  objections  of  the  claimant's  advocate  this  proof  was 
received,  and  it  entered  into  the  sentence  of  condemnation, 
which  the  court  proceeded  to,  without  giving  the  claimants  an 
opportunity  to  give  on  their  part  further  proof. 

Upon  this  unprecedented  proceeding,  which  the  Supreme 
Court  condemns  as  irregular  and  not  "in  accordance  with 
the  rules  of  proceeding  in  prize,"  the  court  of  last  resort, 
nevertheless,  does  not  hesitate  to  draw  from  this  extraneous 
proof  its  suspicions  and  its  damnatory  conclusions. 

^In  truth,  it  must  be  admitted,  as  it  seems  to  us,  that  the 
Supreme  Court  entirely  missed  the  point  of  the  principles 
of  prize  procedure  to  which  we  have  called  attention, 
treated  it  as  an  irregularity  in  form,  from  which  no  harm  had 
come,  and  proceeded  to  condemn  the  property  without  open 
ing  to  the  claimants  an  opportunity  for  further  proofs. 

This  trial  and  condemnation,  then,  were  unprecedented 
and  subversive  of  the  principles  of  prize  jurisdiction,  and 
the  memorialists  have  been  deprived  of  their  property  by  a 
method  not  known  to  the  law  of  nations  and  not  assented 
to  by  neutral  powers.  Upon  this  ground  the  memorialists 
are  entitled  to  restitution  and  indemnity  from  the  United 
States. 

III.  The  passing  of  condemnation  without  giving  an  oppor 
tunity  for  further  proof  was  a  manifest  injustice,  and  the 
proofs  now  presented  to  the  Mixed  Commission  show  the 
completeness  of  the  facts  of  the  case  which  the  memorialists 


716         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

have  now  proved  to  refute  the  hypothesis  and  allay  the  sus 
picions  upon  which  the  condemnations  passed. 

(a)  The  mere  fact  that  the  captors  had  been  allowed  at 
the  first  hearing  to  introduce  extraneous  or  further  proofs 
(an  unheard  of  proceeding)  made  it  necessary,  on  every  prin 
ciple  of  prize  law,  that  the  difficulties  thus  raised  should 
carry  the  conclusion  of  the  court,  at  such  hearing,  no  further 
than  the  demand  of  further  proof,  if  it  was  not  ready  to  ac 
quit. 

(b)  But,  most  assuredly,  when  the  ground  of  condemna 
tion  was  not  on  the  voyage  intercepted,  but  upon  conclu 
sions  of  the  probability  of  a  future  but  unascertained  voyage 
(being   a   conjectured    guilty   supplement   to   an    innocent 
voyage)  the  nature  of  the  ground  of  difficulty  precluded  a 
condemnation  unheard  as  to  the  probable  and  conjectural 
guilt,  which  was  found,  if  at  all,  de  hors  the  primary  proof 
against  the  claimants,  who  had  never  been  admitted,  on 
their  part,  to  proofs  outside  the  primary  proofs.     (Story  on 
Captures,  p.  25,  ut  supra.} 

As  a  matter  of  most  elemental  reason  and  most  universal 
practice  in  prize  courts,  further  proofs  should  have  been 
allowed  the  claimants.  The  absolute  condemnation  was 
contrary  to  the  right  and  system  of  the  prize  jurisdiction. 
On  this  ground  the  memorialists  are  entitled  to  restitution 
and  indemnity. 

IV.  The  precise  form  in  which  the  presence  of  the  trivial 
amount  of  contraband  (so  regarded  by  the  Court)  on  board 
the  "Springbok"  operated  in  effecting  the  condemnation 
of  the  whole  cargo  is  somewhat  obscure.  Apparently  the 
substantial  consequence  given  to  this  portion  of  the  cargo 
by  the  Supreme  Court,  in  their  judgment,  was  as  evidence 
that  that  part  of  the  cargo  was  not  to  stop  permanently  in 
Nassau,  but  was  meant  for  an  ulterior  market.  Instead, 
however,  as  would  have  been  the  legitimate  reasoning  on 
the  subject,  of  condemning  the  contraband  alone  upon  this 


THE  SPRINGBOK  CASE  717 

evidence  of  its  destination,  it  is  made  to  inculpate  the  whole 
cargo,  not  on  the  ground  of  contraband  contamination  (as 
belonging  to  the  same  owners),  but  because  of  inferential 
destination  for  the  same  market  as  the  contraband,  and  of 
such  destination  involving  a  purpose  of  breaking  the  block 
ade,  as  the  whole  coast  was  under  the  blockade.  But  if  the 
condemnation  rests  upon  the  carriage  of  contraband,  and 
not  upon  the  intended  breach  of  the  blockade,  it  was  contrary 
to  sound  principles  to  confiscate  a  great  and  valuable  mass 
of  innocent  cargo  from  the  presence  of  the  dozen  swords  and 
bayonets  and  those  military  buttons.  Even  these  trivial 
quantities  should  not  themselves  have  been  confiscated, 
and  certainly  they  should  not  have  condemned  the  mass  of 
inoffensive  lading.  The  eminent  German  jurist,  Dr.  Lud- 
wig  Gessner,  says: 

It  is  wrong  to  seize  contraband  goods  in  a  neutral  vessel  when 
they  are  in  such  small  quantities  that  their  inoffensive  character 
is  thereby  established.  The  bona  fides  is  a  question  to  be  deter 
mined  by  all  the  circumstances  of  the  case,  among  which  the 
quantity  is  a  very  material  ingredient.  (Droit  des  Neutres  sur 
Mer,  p.  122;  See  3  Phill.,  358;  5  Rob.,  334.) 

V.  But  for  the  reasons  which  we  have  heretofore  stated, 
in  testing  and  weighing  the  importance  of  the  grounds  given 
by  the  Supreme  Court  for  this  condemnation,  its  sentence 
wholly  fails  of  support  in  law  or  in  fact.  The  condemnation 
proceeded,  no  doubt,  upon  the  hypothesis  of  a  breach  of 
blockade  by  a  continuous  voyage  planned  for  the  cargo  from 
the  start,  commenced  by  lading  on  board  the  "Springbok," 
and  in  progress  towards  consummation  when  intercepted. 

(a)  Treating,  as  we  must,  the  doctrine  of  the  "Bermuda" 
as  expressing  the  law  of  "continuous  voyage"  as  held  by 
the  Supreme  Court,  we  find  not  a  particle  of  evidence  to 
sustain  the  condemnation  of  the  "Springbok's"  cargo, 
within  that  doctrine.  That  doctrine  requires,  an  exhibition, 
by  the  proofs,  of  the  vehicle  and  voyage,  whether  by  means 


718         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

of  a  new  bottom  or  not,  which  was  to  consummate  the  breach 
of  blockade.  In  the  case  of  the  "Bermuda,"  the  Court 
found,  on  the  proofs,  such  a  vehicle  and  such  a  voyage. 

In  the  case  of  the  "Springbok,"  no  such  vehicle  and  no 
such  voyage  are  exhibited  upon  the  proofs.  The  service 
of  the  "Gertrude"  for  the  continuance  of  the  carriage  of 
this  cargo,  the  only  project  the  court  entertained  as  probable, 
signally  failed.  The  "Gertrude"  was  on  the  other  side  of 
the  Atlantic,  and  her  blockade  running  was  independent  of, 
and  subsequent  to,  the  Springbok's  commerce. 

Thus,  upon  the  law  of  the  "Bermuda,"  the  condemnation 
of  the  "Springbok's"  cargo  was  without  any  support  of 
evidence  or  fact. 

(b)  It  cannot,  indeed,  be  doubted  that  the  doctrines  upon 
which  the  Supreme  Court  based  its  condemnation  of  the 
cargo  of  the  "Springbok,"  while  they  acquitted  the  ship  and 
held  its  voyage  wholly  lawful,  are  far  looser  and  more  exten 
sive  than  those  of  the  "Bermuda,"  or  any  previous  case. 

This  doctrine  of  "continuous  voyage,"  as  applied  in  the 
case  of  the  "Springbok,"  which  permits  interception  during 
the  innocent  voyage  between  the  neutral  ports,  and  con 
demnation  of  cargo  only,  upon  destination  to  ultimate  market 
inferred  from  the  demand  for  such  cargo  in  the  enemy  ports, 
scatters  to  the  wind  all  the  limitations  on  belligerent  inter 
ference  with  neutral  trade  which  are  confessedly  to  be  ob 
served  when  the  voyages  are  direct  between  the  enemy  and 
the  neutral  port;  it  breaks  down  all  the  safeguards  of  the 
prize  procedure,  widens  the  province  of  circumstantial  or 
moral  evidence  so  as  to  embrace  the  proof  of  the  corpus 
delicti,  and,  in  fact,  exposes  neutral  trade  between  neutral 
ports,  which  the  war  develops  injuriously  to  belligerent 
interests,  to  suppression  as  itself  unlawful. 

No  doubt  belligerents  chafe  under  the  opportunities  which 
purely  neutral  trade  between  domestic  neutral  ports  may 
furnish  to  advance  the  carriage  of  supplies  (contraband  or 


THE  SPRINGBOK  CASE  719 

intended  for  breach  of  blockade)  to  the  outposts  of  the 
neutral  nation,  and  thus  shorten  the  transit  of  supplies 
which  is  exposed,  by  the  law  of  nations,  to  the  lawful  inter 
ference  of  belligerent  power.  No  doubt,  in  the  Civil  War 
in  America,  this  development  of  neutral  trade  between  Great 
Britain  and  her  transmarine  possessions,  near  to  the  block 
aded  rebel  coast,  was  seriously  detrimental  to  the  belligerent 
interests  of  the  United  States. 

No  doubt,  the  cruisers  and  the  prize  courts  were  justified 
in  vigilance  and  activity  to  prevent  the  voyages  between 
neutral  and  belligerent  ports  open  to  condemnation  by  the 
law  of  nations,  from  being  dissembled  under  the  cover  and 
guise  of  neutral  destination  up  to  the  line  of  neutral  inter 
course,  and  there  run  into  the  blockaded  ports. 

But,  on  the  other  hand,  it  is  equally  clear  that  the  cruis 
ers  and  the  prize  courts  are  not  to  be  permitted  by  neutral 
nations  to  do  indirectly  what  would  be  just  ground  for 
resentment  and  even  war,  if  done  directly.  The  peace  of 
the  world  is  not  to  be  secured  in  that  way. 

Upon  the  whole,  then,  it  is  respectfully  submitted,  that 
the  case  of  the  "Springbok's"  cargo,  if  suffered  to  remain 
unre versed  as  a  rule  of  the  law  of  nations,  gives  to  belliger 
ents  a  power  which,  heretofore,  they  have  never  dared  to 
claim,  and  subjugates  the  commerce  of  neutral  nations  to 
belligerent  exigencies  to  an  extent  never  before  submitted 
to,  an  extent  not  tolerable  either  to  their  interests  or  their 
pride. 

The  rule  thus  established  gives  to  the  cruisers  and  the 
prize  courts  a  wider  and  more  uncontrolled  sweep  of  inter 
ference  with  commerce  between  the  proscribed  neutral  ports 
than  they  possess  in  respect  to  commerce  between  neutral 
and  belligerent  ports. 

A  paper  blockade  of  the  neutral  ports,  not  tolerable  to 
wards  the  enemy's  ports,  capture  and  sending  in  for  adjudi 
cation  vessels  that  cannot  by  possibility  convict  or  acquit 


720         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

themselves  on  the  primary  proofs — for  they  cover  only  the 
present  and  innocent  voyage — condemnation  upon  intent 
of  future  voyage,  not  commenced,  necessarily  upon  extran 
eous  proofs,  if  at  all — all  these  strange  consequences  follow 
from  this  new  doctrine  of  belligerent  right  and  neutral  sub 
serviency. 

It  is,  in  nature  and  substance,  an  enlargement  of  the  do 
main  of  good  prize  of  war,  to  the  theatre  of  neutral  trade 
between  neutral  ports,  upon  the  fiction  of  possible  contin 
uous  voyage  for  cargo,  yet  to  be  named  and  framed. 

The  future  interests  of  the  United  States  imperatively 
demand  that  the  barriers  against  belligerent  pretension 
which  this  case  of  the  "Springbok"  has  overturned,  should 
be  firmly  re-established  by  the  judgment  of  this  Interna 
tional  Tribunal. 

We  may  well  conclude  this  argument  to  the  justice  and 
benevolent  wisdom  of  this  enlightened  Commission,  by  the 
grave  counsels  of  the  celebrated  French  publicist,  Count 
Portalis,  as  given  by  him  to  the  prize  courts  of  France,  on 
their  installation  in  1800,  in  the  midst  of  the  fiercest  wars: 

Courts  of  law  deserve  the  severest  censure  when,  instead  of 
proceeding  on  the  principle  of  international  law  applied  with 
equity,  and  in  a  manner  rather  favorable  to  neutrals,  they  take 
for  their  point  of  departure  the  interest  of  the  belligerents.  State 
policy  may  have  its  plans  and  mysteries,  but  on  the  bench,  reason 
should  ever  maintain  its  empire  and  its  dignity.  When  arbitrary 
pretexts,  founded  on  fear  or  selfishness,  direct  the  judgment  seat, 
all  is  lost.  By  inspiring  terror,  you  may,  for  a  moment,  increase 
your  strength,  but  it  is  by  inspiring  confidence  that  you  will  main 
tain  it  permanently. 

In  the  confident  expectation  that  this  Mixed  Commission 
will  make  restitution  and  give  indemnity  to  these  memorial 
ists  for  the  unwarranted  condemnation  of  the  cargo  of  the 
"Springbok,"  we  have  occasion  further  to  consider  only  the 
proper  pecuniary  expression,  of  that  indemnity. 


THE  SPRINGBOK  CASE  721 

The  amount  to  be  awarded  to  the  Memorialists. 

There  seems  to  be  no  reason  to  doubt  that 'the  appraise 
ment  in  the  market  at  Nassau,  as  given  in  the  memorialists' 
proofs,  is  the  reasonable  measure  of  their  damages,  and  that 
sum,  with  interest,  should  be  the  measure  of  the  meniorial- 
ists'  indemnity. 

The  great  value  of  this  cargo,  and  that  the  Nassau  ap 
praisement  was  not  excessive,  may  well  be  inferred  from  the 
forced  sale  by  the  marshal  in  a  market  for  which  the  cargo 
was  unsuited.  This  sale  produced  very  nearly  $250,000. 

That  interest,  for  delay  in  satisfaction,  is  a  necessary  and 
component  part  of  indemnity,  should  be  considered  as 
settled  between  the  United  States  and  Great  Britain,  at 
least,  by  the  award  of  the  Geneva  tribunal  on  the  Alabama 
claims. 

There,  after  special  and  full  argument  by  counsel  on  both 
sides,  on  this  very  question  of  interest,  ordered  by  this 
tribunal,  the  award  embraced  interest  to  the  amount  of 
some  $5,000,000.  (See  argument  and  award  in  the  "Ala 
bama  Claims.") 

All  which  is  respectfully  submitted. 

Newport,  R.  I.,  August  18,  1873. 

WM.  M.  EVARTS, 
Of  Counsel  for  Claimants. 
Respectfully  submitted, 

J.  M.  CARLISLE, 
H.  B.  M's  Counsel. 

NOTE. 

In  the  "statement"  which  forms  a  part  of  this  argument, 
we  have  referred  to  the  "Proofs  for  Defence,"  introduced 
by  the  United  States,  and  authenticated  only  by  the  cer 
tificate  of  the  Secretary  of  War. 

As  those  proofs  do  not  purport  to  contain  any  evidence 
against  the  cargo  of  the  "Springbok,"  in  question,  or  her 

48 


722         SPEECHES  OF  WILLIAM  MAXWELL  EVARTS 

voyage,  or  any  prospective  voyage  for  the  cargo,  we  have 
not  regarded  their  presence  as  bearing  otherwise  than 
towards  the  acquittal,  and  not  the  condemnation,  of  this 
cargo.  But  the  memorialists,  under  the  form  of  the  cer 
tification  adopted  by  the  Secretary  of  War,  were  warranted 
in  supposing  that  the  originate  of  all  papers  thus  authen 
ticated  by  copies,  were  on  file  in  the  War  Department. 
Upon  the  demand  of  the  claimants,  however,  for  the  pro 
duction  of  an  original  paper  for  inspection  and  verification, 
it  appears  that  the  paper  demanded  is  not  in  the  Depart 
ment,  and,  upon  further  inquiry,  that  other  papers  con 
tained  in  these  "Proofs  for  Defence"  are  not,  as  originals, 
to  be  found  in  the  Department. 

Under  these  circumstances  it  is  impossible  to  expect  the 
claimants  to  submit  to  have  the  trial  of  this  cause  before 
the  Mixed  Commission  at  all  prejudiced  by  "proofs,"  lack 
ing,  in  substance  as  well  as  form,  every  quality  of  evidence. 

The  claimants,  for  the  reasons  given  here  and  in  the  said 
"Statement,"  respectfully  submit  that  said  so-called  "Proofs 
for  Defence"  should  be  discarded  by  the  Commissioners 
from  all  consideration.* 

W.  M.  E. 

*The  appendix  to  Mr.  Evarts's  printed  argument  is  omitted  here  as  not  essential 
to  an  understanding  of  the  argument  itself.  The  appendix  contained  the  "black 
list"  of  British  vessels  suspected  of  attempting  breach  of  blockade,  an  extract  from 
a  letter  addressed  by  Mr.  Seward  as  Secretary  of  State  to  Mr.  Gideon  Welles,  Sec 
retary  of  the  Navy,  as  to  the  duties  of  naval  officers  in  the  matter  of  seizure  of  ves 
sels  as  prize,  and  a  synopsis  of  the  cargo  of  the  "  Springbok." 


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